(Photo by Chris Hondros/Getty Images)
In the early days of the COVID-19 outbreak, Rhode Island imposed a rule stopping motorists from New York from entering the state without undergoing a 14-day self-quarantine. Governor Gina Raimondo claimed that locking off access to New York was a critical public health initiative. Governor Andrew Cuomo responded by screaming bloody murder and threatening to sue Rhode Island over the discriminatory practice. Raimondo defused the situation by changing the standard to apply to people entering the state from any other state.
Now, New York, New Jersey, and Connecticut have the virus more or less under control and have decided it’s time to impose their own quarantine upon visitors from states that they’ve decided represent intolerable hotspots because the unconstitutionality that they couldn’t brook two months ago now makes for a good opportunity to preen for the cameras and look tough themselves — not unlike Raimondo tried to do when Cuomo was neck-deep in a public health crisis he exacerbated himself. But now he’s the one with low numbers and turnabout is fair play as they say in constitutional law! Oh, sorry, no. Only Neomi Rao says that about constitutional law.
The new policy is based on the ostensibly neutral standard of a seven-day rolling average of 10 percent positives thus cutting out Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Washington, Utah, and Texas.
Texas and Florida, coincidentally, also put up travel restrictions against New York in the past and are now complete dumpster fires suggesting that these political stunts might not be as effective in fighting the virus as wearing masks and not forcing people to work in offices within your own state, but put the efficacy of this proposal to one side for a second.
No one wants to be exposed to the virus and states can and should be working a lot harder to combat it. But, alas, you can’t start singling out people from certain states for discriminatory treatment like this. We’ve had bouts over this within the legal profession when New York declared that its first go-around of the bar exam in the fall would be closed to non-NY law school grads. Illinois Law School’s Dean Vik Amar noted that discriminating against economic actors based on their state like that would trigger a sort of strict scrutiny review. I argued that because New York’s bar exam proposal (like the quarantine Rhode Island eventually settled on) would probably pass muster in part because it was a blanket policy and there are decent arguments for fast-tracking in-state graduates. Either way, the point was that discriminating against out-of-staters requires a really good reason.
In any event, it’s hard to imagine Cuomo and his neighboring governors can provide a particularly strong justification for shutting out Utah while remaining open for business with its fellow hotspot California. One would think that the volume of travel should be far a more important component in any credibly crafted policy. Even if California doesn’t hit the threshold the Tri-State governors drew up at random (and it looks like they are very conveniently just under the line the governors chose to draw) it’s a fairly safe bet that considering the number of Angelenos coming to New York every day as opposed to Provoites (or whatever they’re called) the risk of exposure is far higher allowing unchecked travel from California. So if the stated purpose of the law is to prevent exposure this standard is poorly tailored to do that.
How arbitrary is the line that the Tri-State governors drew? Washington dropped off the list before the day was over! Phew. Glad to know they went from serious threat to perfectly safe so quickly. The irony of this is that the original Rhode Island and Texas policies, forged when New York was hundreds of times sicker than other states with upwards of 1000 deaths per day, presented a far stronger, if still likely uphill argument, for singling out citizens of a specific state.
Maybe no one is going to sue the states over this. The states targeted by the quarantine certainly have their hands full right now, but it’s hard to imagine there’s no enterprising attorney general in one of these states doesn’t want a throwdown with New York. In fact, some of these states don’t seem to care much about actually fighting the virus so fighting New York is probably all they’re willing to do.
Everyone wants to be safe and everyone wants to see “action” to keep them safe. But discriminating against citizens of other states based on drawing random lines manages to protect almost no one while also being unconstitutional. Either make all states — or at least a lot more similarly situated ones — quarantine or just stay vigilant with in-state public health initiatives. Forcing people to wear masks may not be a flashy initiative, but we don’t need leaders to make waves, we just need them to do their jobs.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.