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Legal Experts Raise Red Flags on States’ Coronavirus Response

By Jeremy Conrad

April 14, 2020

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On April 6 Georgetown University Law Center hosted a webinar that examined measures taken by state and local governments to combat the spread of coronavirus, raising questions about their constitutionality and efficacy. 

“COVID-19 vs. the Constitution: How Far Can Governors Go to Fight the Virus?” featured a panel of experts who considered state actions related to COVID-19, such as travel restrictions, vehicle screenings, and door-to-door searches. Texas set up checkpoints to screen vehicles entering the state from Louisiana, adding to previous state-issued requirements that air travelers from Louisiana, California, Atlanta, Chicago, the New York Tri-State Area, and elsewhere self-quarantine for 14 days upon entry. 

In March, Rhode Island Governor Gina Raimondo deployed the National Guard and state police to conduct door-to-door searches for New Yorkers who would be subjected to mandatory quarantine, as well as to monitor highways and stop vehicles with New York plates. (Facing backlash, Raimondo later amended her order, mandating a 14-day self-quarantine for all out-of-state motorists.) “What is constitutional in one scenario is different than in another. This is pinpointed, this is targeted, this is a state of emergency, this is limited in time, and it’s going to be enforced in a respectful way,” Raimondo said in a press conference.  

Legal, health, and policy experts at the Georgetown webinar, however, begged to differ. Lawrence Gostin, director of Georgetown Law’s O’Neill Institute for National and Global Health Law, was unequivocal about the limits of state power. “States can’t restrict interstate travel,” said Gostin, who drafted the Model State Emergency Health Powers Act for the Centers for Disease Control and Prevention. That power rests securely with Congress and, potentially, with the president, he said. 

Gostin’s position does not suggest inaction by the states, but he rejected as problematic blanket quarantines and broad categorizations of individuals from particular areas. Statutes, he said, require clear and convincing evidence established on an individual level.  

The primary constitutional issue in coronavirus response measures in Texas and Rhode Island, as well as in Florida, Kansas, Hawaii, South Carolina, Alaska, and elsewhere, relate to the Privileges and Immunities Clause in Article IV, Section 2, of the Constitution. While state governments do hold a substantial authority to act to preserve the health and safety of their constituents, the Constitution forbids disparate treatment of residents and non-residents. 

Esha Bhandari, staff attorney for the American Civil Liberties Union, also echoed concerns about the constitutionality of states’ response to the coronavirus pandemic. Policies that differentiate state residents arriving from elsewhere from non-residents not only violate the Constitution but also are irrational from a public health perspective, Bhandari said. 

Bhandari called for procedural due process rights for those impacted by state actions, saying that at present, little or no process exists to challenge unnecessary or discriminatory quarantine orders. The failure to apply restrictions in a fair and nuanced fashion could undermine faith in public institutions, further complicating response efforts, Bhandari argued. 

For Juliette Kayyem, faculty chair of the Homeland Security and Security and Global Health Projects at Harvard’s Kennedy School, states are not without effective and constitutional responses to the crisis. Quarantines should only be applied where an individual has tested positive for coronavirus, or if there is a reasonable expectation that they may be infected, said Kayyem, who played a pivotal role in the Obama administration’s handling of the H1N1 pandemic. 

She also reiterated Gostin’s clear and convincing evidence standard. The legal authority asserted by many states has nothing to do with effective public health strategies, Kayyem said. Instead, Kayyem called for stronger federal leadership, such as in the management and distribution of resources. 

Rather than securing their borders against neighboring states, governors can and should employ legal mechanisms that facilitate cooperation, said Jeffrey Locke, program director of the Homeland Security & Public Safety team within the National Governors Association. Locke cited the Emergency Management Assistance Compact, an agreement among states and territories of the United States that facilitates the exchange of supplies and personnel between states during crisis. 

Overall, the panelists agreed that constitutional protections need not fall victim to coronavirus. Their shared vision was a response in which state governments avoid implementing policies that are questionable both in their legality and efficacy. Instead, they saw the COVID-19 crisis as an opportunity to overcome challenges with measured responses and a renewed commitment to cooperation, rather than division.