Block on Trump's Asylum Ban Upheld by Supreme Court
Can governors order visitors from another state to be quarantined?
Three months ago, when New York was the hottest COVID-19 hot zone in the U.S., New York Governor Andrew Cuomo said no. Governors in Florida, Rhode Island, and Texas signed executive orders requiring any travelers from New York to self-quarantine for 14 days, and those actions did not sit well with him.
In the U.S., Cuomo said correctly, citizens have freedom to travel, and if they happen to live in a state with a high rate of coronavirus infections, it doesn't matter. He even threatened to sue Rhode Island, charging that Governor Gina Raimondo's order that state police pull over cars with New York license plates was "clearly unconstitutional." (Raimondo repealed the order.)
Fast forward to June 24, however, and Cuomo was singing a different tune. By that date, New York's rate of new infections had dropped dramatically, and now it was Florida, Texas, Arizona, and several other states with rapidly escalating infection numbers. And now it was Cuomo, along with the governors from Connecticut and New Jersey, who sought to impose quarantines on visitors from those states.
If it sounds like hypocrisy, Cuomo has an answer. He says that New York (and Connecticut and New Jersey) took stringent lockdown steps to flatten the curve, and so it has more or less earned the right to require visitors to self-quarantine.
"In New York we went from the highest number of cases to some of the lowest rates in the country," he said. "No one else had to bend the curve as much as we did and now we have to make sure that the rate continues to drop in our entire region. ... 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."
The order states that the quarantine applies to states with a COVID-19 transmission rate that's above 10 per 100,000 people over a seven-day rolling average or 10% of the total population testing positive on a seven-day rolling average.
On June 24, eight states fit those criteria: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Texas, and Utah. Then, on June 29, Cuomo's office announced that eight more states could be added to the list: California, George, Iowa, Idaho, Louisiana, Mississippi, Nevada, and Tennessee. If they're added, that would mean 48% of the American population would need to quarantine if they travel to New York.
Certainly, this is a bold attempt to rein in the coronavirus. But is it legal?
Public-health and policing experts who talked to NBC News said the order is "unenforceable and borders on the unconstitutional."
While the federal government can order travel bans against any country, states don't have that degree of power when it comes to singling out other states.
Polly Price, a professor of law and public health at Emory University in Atlanta, told NBC that while a state can request visitors to self-quarantine "constitutional issues become tricky" when they threaten fines if you don't. And New York, Connecticut, and New Jersey are threatening fines of up to $10,000.
While Cuomo certainly sounds serious when he talks about the fines, he's still apparently uncertain about how his order will be legally enforced. PBS member station WXXI in Rochester reported that Cuomo said he's talking to "airport officials, and even federal customs agents, on how New York's travel advisory can legally be enforced."
“We are talking to the airlines right now about our ability as a state to question people coming into our airports, gathering information from them, doing checks on them, temperature checks, etc. What is our legal authority, and how cooperative would the airlines be. We're in the middle of that now."
So, legally speaking, where might all this end?
"(I)t's hard to imagine there's no enterprising attorney general in one of these states (who) doesn't want a throwdown with New York," writes attorney Joe Patrice in the Above the Law blog.
"Everyone wants to be safe and everyone wants to see 'action' to keep them safe," Patrice continues. "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."
Still, if you are a resident of one of the targeted states and you need to visit New York, Connecticut, or New Jersey, you'd be well advised to self-quarantine if possible. It's probably best not to push your luck.