Yesterday our Governor, Jim Justice, in one of his live-stream briefings, threatened to order a travel ban of sorts, where any West Virginia resident who leaves the state will be forcibly tested for COVID-19 and quarantined. Before I even get to the potential Fourth Amendment violations which he’s proposing, the restrictions on interstate travel – that is traveling between states – is about as clear-cut of a violation as you can get.
These are his words:
Mandatory testing and quarantining when residents return to the state from out of state travel “is on the table,” Justice said.Gov. Justice says mandatory testing and quarantining are ‘on the table’ for out of state travel after increase in COVID-19 cases and hospitalizations
The Governor in Kentucky tried this and was shot-down in federal court. Kentucky attorney, Chris Weist, sued the Kentucky Governor in federal court in response to his “travel ban,” and the Court found it to be clearly unconstitutional. The Kentucky ban “limited the reasons that Kentucky residents could leave the state and required that any person who left the state without a valid reason be self-quarantined for 14-days after their return.”
As outlined in Beshear’s two executive orders, order 2020-206 and 2020-258, individuals were only permitted to leave the state for employment, to receive or provide health care, to obtain groceries or other needed supplies, and when they were required to do so by a court order. The orders also allowed a resident to travel outside the state to assist in caring for the elderly, a minor, dependants, or vulnerable or disabled persons.Kentucky’s Covid-19 Travel Ban Ruled Unconstitutional
The U.S. District Court for the Eastern District of Kentucky struck it down:
After careful review, the Court concludes that the Travel Ban does not pass constitutional muster. The restrictions infringe on the basic right of citizens to engage in interstate travel, and they carry with them criminal penalties.
The “‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Rose, 526 U.S. 489, 498 (1999) (quoting United States v. Guest, 383 U.S. 745, 757 (1966)). Indeed, the right is “virtually unconditional.”Id. (quoting Shapiro v. Thompson, 394 U.S. 618, 643 (1969)). See also United States v. Guest, 383 U.S. 745, 757 (1966) (“Theconstitutional right to travel from one State to another … occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established andrepeatedly recognized.”).Roberts v. Neace, et al., Civil Action No. 2:20-cv-054, E.D. KY., May 4, 2020.
The federal court in Kentucky went on to say that it is possible that it might be constitutional if it were less restrictive. For instance, if it was a “request,” or “guidance,” rather than something that was going to be forcibly enforced. Or at least attempted to be enforced.
The key is that restriction on travel must be narrowly tailored so as to choose the least drastic means of achieving the objective. The federal court in Kentucky gave the following examples of individuals who would be unconstitutionally affected by the Kentucky ban:
- A person who lives or works in Covington would violate the order by taking a walk on the Suspension Bridge to the Ohio side and turning around and walking back, since the state border is several yards from the Ohio riverbank.
- A person who lives in Covington could visit a friend in Florence, Kentucky (roughly eight miles away) without violating the executive orders. But if she visited another friend in Milford, Ohio, about the same distance from Covington, she would violate the Executive Orders and have to be quarantined on return to Kentucky. Both these trips could be on an expressway and would involve the same negligible risk of contracting the virus.
- Family members, some of whom live in Northern Kentucky and some in Cincinnati less than a mile away, would be prohibited from visiting each other, even if social distancing and other regulations were observed.
- Check points would have to be set up at the entrances to the many bridges connecting Kentucky to other states. The I- 75 bridge connecting Kentucky to Ohio is one of the busiest bridges in the nation. Massive traffic jams would result. Quarantine facilities would have to be set up by the State to accommodate the hundreds, if not thousands, of people who would have to be quarantined.
- People from states north of Kentucky would have to be quarantined if they stopped when passing through Kentucky on the way to Florida or other southern destinations.
- Who is going to provide the facilities to do all the quarantining?
Most, if not all, of the same examples would occur here in West Virginia, if the Governor had his way. There can be little doubt that a federal challenge would be successful. The question is, does he care?
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UPDATE: the Livecast:
Also, here’s the link to the 1969 law review article I discussed:
Constitutional Protection for Freedom of Movement: A Time for Decision by Sheldon Elliot Steinbach, Kentucky Law Journal, 1969
And here’s the quote and cite for the 1849 case I mentioned:
For all the great purposes for which the Federal Government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members ofthe community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.Smith v. Turner, 48 U.S. 7 283, 292 (1849).
UPDATE 8/18: the podcast audio from the live cast: