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Restrictions on out-of-state arrivals in several states have drawn court challenges. Meanwhile, New York and two other states moved ahead with a policy like this on Wednesday.
Hawaii’s requirement that travelers entering the state sequester themselves away from others for 14 days to help curb coronavirus risks disfavors out-of-state residents in a way that is likely unconstitutional, the Trump administration is arguing.
The Justice Department called the policy into question in a statement of interest filed on Tuesday in a case that’s now before a federal district court. Nevada and California residents who own property in Hawaii, along with a Honolulu resident, are challenging a “self-quarantine” mandate Gov. David Ige first issued back in March.
It’s one of two lawsuits that have been filed in federal court over the restrictions, which apply to both residents and non-residents who are arriving from out of state. The state did alter its rules earlier this month to allow quarantine-free travel between Hawaii’s islands.
A similar legal battle over quarantine requirements for travelers has been playing out in Maine. And a federal judge sided against Kentucky last month in a challenge against travel restrictions there that were designed to prevent the spread of the coronavirus.
Meanwhile, the Democratic governors of Connecticut, New Jersey and New York jointly announced on Wednesday that their states would require visitors arriving from states that are coronavirus hotspots to quarantine for two weeks. The Justice Department hinted in its brief that it may not oppose more narrowly tailored policies like this.
“We've worked very hard to get the viral transmission rate down and we don't want to see it go up again because people are traveling into the state and bringing it with them,” New York Gov. Andrew Cuomo said in a statement about the quarantine measure.
The restrictions, which are based on state infection rates, currently apply to Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Utah and Texas, Cuomo said. Washington state was initially included on the list, but later removed.
Earlier on during the outbreak, in late March, when New York and New Jersey were epicenters for the virus, Florida’s Republican governor, Ron DeSantis, imposed a similar quarantine requirement for travelers coming from the New York tri-state area. Rhode Island also imposed restrictions along these lines on out-of-state arrivals.
As of Wednesday, over 120,000 people have died in the U.S. since February after contracting Covid-19, the highly contagious respiratory illness that the coronavirus causes. Some states are seeing cases decline or level off, but in others, like Florida, Texas and Arizona, there are troubling signs that the virus is surging.
Throughout the public health crisis, state and local officials have been forced to consider how far to go infringing on personal liberties and commerce as they’ve adopted restrictive measures like stay-at-home orders intended to slow the spread of the disease.
In the statement of interest filed on Tuesday in the Hawaii case, attorneys for the Justice Department argue that the state’s quarantine requirement runs afoul of what’s known as the Privileges and Immunities Clause of Article IV of the U.S. Constitution.
They urge the court to hold that this is so.
The brief also emphasizes that the self-quarantine requirements have also “caused real harm to Hawaii’s tourist industry, at a time when Americans most need their States to support efforts to reopen businesses in a manner consistent with public health.”
Citing a past Supreme Court opinion, the Department of Justice lawyers explain in their court filing that the Privileges and Immunities Clause, “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.”
“Hawaii’s self-quarantine mandate effectively discriminates against out-of-state residents,” they added.
The reasoning here is that Hawaii residents who have stayed in-state during the pandemic can travel around between islands, use their property and engage in commerce.
Out-of-staters, on the other hand, are supposed to stay in one spot for two weeks and during that time, based on the state guidelines, are supposed to refrain from activities like renting cars and even shopping in-person for groceries. That's the case even if they're arriving from a place like Montana or Alaska that hasn't been hard hit by the virus.
Additionally, the Justice Department contends that the Hawaii mandate is “underinclusive” in that it leaves out state residents who've remained in Hawaii, allowing them to move about freely—even if they’re coming from an in-state location with a high coronavirus case count and haven’t been tested for Covid-19.
Hawaii’s state attorney general’s office has argued in court filings that the 14-day quarantine mandate for out-of-state arrivals, along with other public health orders, have protected the state’s health care system from becoming overwhelmed by coronavirus patients.
They also point to Hawaii’s isolated location—about 2,300 miles off the coast of California—and say that getting assistance to reinforce the state’s medical system, or transferring patients to other states for treatment, could be difficult compared to other places.
And they note that many travelers reach Hawaii by plane, and that with air travel it can be difficult for people to maintain distance from one another, as public health experts recommend they do in order to cut down on the chances of the virus spreading.
As of June 18, only 17 of the deaths linked to Covid-19 nationwide had occurred in Hawaii and the state only had 762 cases of the virus.
The Hawaii quarantine mandate is not the only policy of its kind facing a legal challenge.
Campground operators, along with other tourism-dependent businesses and individual plaintiffs last month filed a lawsuit over Maine’s 14-day quarantine policy for out-of-state arrivals. There, too, the Justice Department weighed in by saying that the state quarantine requirement was likely unconstitutional.
U.S. District Judge Lance Walker in late May declined to issue a preliminary injunction blocking the mandate.
But he also said that those challenging the policy had “raised a very serious matter for judicial resolution,” and that he was “persuaded that they might be able to demonstrate a violation of the Constitution sometime during the travel of this case.”
That case is still active.
With the Hawaii dispute, the DOJ lawyers acknowledged that Privileges and Immunities Clause protections have limits and that there are instances where states could be permitted to enact policies that have the practical effect of discriminating against nonresidents.
“The Constitution does not hobble States from taking necessary, temporary measures—including quarantines—to meet a genuine emergency,” they wrote.
Offering a possible indication of how the Justice Department may view the quarantine mandate targeting states with high infection rates that New York, New Jersey and Connecticut adopted, the department’s lawyers added that if the Hawaii policy only applied to people traveling from coronavirus hot spots, “this might be a different case.”
The brief also notes that Alaska, another isolated state with a relatively low number of coronavirus cases, has a 14-day self-quarantine period for people entering the state, but that the state provides travelers with quarantine alternatives—like getting tested for the virus upon arrival or showing proof of a qualifying negative test.
“Hawaii’s Governor may take reasonable steps to protect public safety during the COVID-19 pandemic, he must show that any measure imposed that has the practical effect of discriminating against out-of-staters under the Privileges and Immunities Clause bears a substantial relationship to that goal,” the DOJ attorneys wrote.
“As of now, he has not done so," they added.
Editor's note: This story was updated to note that Washington state was removed from a list of states covered by the traveler quarantine policy adopted by New York, New Jersey and Connecticut.
Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.