Can Governors Close Their Borders to Pandemic Risks?

Anyone remember January 1, when we thought 2020 would mean clarity of vision and foresight for a new decade? How quickly the world has changed. Since the arrival in the United States of COVID-19, we were told by President Donald Trump that it would go away in April from warm weather, that he wanted churches to be packed on Easter, and that he wanted us to to reopen our doors and wallets by May 1 to get back to normal work and buying patterns.

All wrong.

As of mid-April we had a battle looming between the president and some governors as to who controls stay-at-home orders and state borders. On April 13 the president said, “When someone is president of the United States, the authority is total,” and others opined that no one can abridge the “fundamental right” to interstate travel.

Again, all wrong.

And while on April 16 the president backed down and left it to each of the 50 governors to “call your own shots,” he has, more recently, endorsed protestors who have demonstrated publicly against stay-at-home orders issued by Democratic governors. These developments allow for the very real scenario of certain states lifting restrictions weeks or months before neighboring states—which would create very critical legal questions and challenges for those states who are more protective of their residents.

A History of State Authority to Restrict Travel

COVID-19 is not the first pandemic affecting America, and will not be the last. Under such circumstances, states have well-recognized authority to limit travel within and across their borders.

Over 100 years ago, during the smallpox era, the U.S. Supreme Court issued two decisions about limiting the “right” to interstate travel—which, by the way, does not appear in the U.S. Constitution. First, in 1902’s Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana, the Court stated:

That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question. That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.

In other words, until Congress (not the president, who cannot enact law by himself) says otherwise, states may act to protect their own citizens from pandemic harms.

Likewise, in 1905, in Jacobson v. Massachusetts the Supreme Court held:

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members … every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Although Jacobson involved vaccinations for smallpox, the Court’s confirmation that a state can enact compulsory laws and regulations to protect its residents from an epidemic is still good law.

Good law that was more recently applied in a travel case in 1965, when Chief Justice Earl Warren wrote for the Supreme Court in Zemel v. Rusk:

The right to travel within the United States is of course also constitutionally protected … But that freedom does not mean that areas ravaged by flood, fire or pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safety and welfare of the area or the Nation as a whole.

By the time of this decision, the notion that restrictions on interstate travel were warranted in such circumstances was so secure that Warren could use it as a basis for an analogy to international travel.

Federal Inaction on Interstate Travel

Thus, following these Court decisions, we must ask: What has Congress said about the ability to restrict interstate movement in a time of public health threats, and does it limit states’ authority? The answer is that Congress, in the past, has delegated power to the Secretary of Health and Human Services to authorize the Surgeon General to make regulations

necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.

In response to Ebola and earlier threats, such regulations exist. One authorizes that if the director of the Centers for Disease Control and Prevention (CDC)

determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary.

Indeed, on March 14, the CDC issued a “No Sail” Order, which it renewed on April 9, banning all cruise ships from disembarking passengers (many of them Americans) into any American port. Why? To achieve the priorities of

Preservation of human life; preventing further introduction, transmission, and spread of COVID-19 into and throughout the United States; preserving public health and other critical resources of federal, state and local governments; [and] preserving hospital, health care, and emergency response resources within the United States.

However, the CDC director has not yet issued a similar “No Non-Essential Travel” order, which would restrict interstate travel to essential commercial and health needs.

The Important Role of Travel Restrictions

In the likely event he does not or is not allowed to do so, it is important to remember what happened with the Spanish Flu Pandemic of 1918. Locations that lifted social distancing mandates too early experienced a second surge in deaths. Moreover, currently the U.S. continues to have shortages of personal protective equipment, testing kits, and other essential equipment needed before anyone can safely say that someone coming from – for example – large cities into smaller cities or towns, with far less health care resources, is not increasing the risks that the Supreme Court and the CDC have said can legally be addressed through restrictions on travel. Some experts say the U.S. needs to triple its current testing capacity before social distancing restrictions can be safely lifted.

The U.S. is exceptional. As of April 17, we have many more people – over 750,000 confirmed to be infected by the coronavirus than any other country, and we have many more Americans – over 40,000 – who have died from it. Our daily totals for both are still rising faster than almost anywhere else in the world. COVID-19 has largely been spread by well-meaning, asymptomatic people – including so-called super-spreaders – who have put innocent lives at risk in all 50 states.

Conclusion

Now is not the time for partisan politics, be it among governors, or between them and Washington. A state’s stay-at-home restrictions should lawfully be allowed to continue for as long as a governor deems them necessary. If there are other governors who disagree for her or his own state, and if the CDC or Congress does not mandate a nation-wide protection of everyone’s lives and resources to avoid a second surge of deaths, residents of the “lenient” states should not be allowed to travel into those states with ongoing stay-home orders.

In 2020, that is what clear vision and foresight requires.

Image: A Monroe County sheriff mans a checkpoint on U.S. 1 leading into the Florida Keys on March 27, 2020 in Florida City, Florida. Monroe County administrators made the decision to prohibit tourists and only allow property owners and people who show they legitimately work in the Keys to pass through the roadblocks in an effort to stop the spread of COVID-19. Photo by Joe Raedle/Getty Images

 

About the Author(s)

Jeff Thaler

Professor at the University of Maine School of Law, Co-founder and 3rd President of the American College of Environmental Lawyers