I’ve been wondering about the legal limits on local attempts to control or stop travel to Hawaii during the Covid-19 crisis.

I’ve always thought the right to interstate travel is at least implicitly guaranteed by the U.S. Constitution.

According to the Legal Information Institute, a project of the Cornell Law School:

The doctrine of the “right to travel” actually encompasses three separate rights, of which two have been notable for the uncertainty of their textual support. The first is the right of a citizen to move freely between states, a right venerable for its longevity, but still lacking a clear doctrinal basis. The second, expressly addressed by the first sentence of Article IV, provides a citizen of one state who is temporarily visiting another state the “Privileges and Immunities” of a citizen of the latter state. The third is the right of a new arrival to a state, who establishes citizenship in that state, to enjoy the same rights and benefits as other state citizens. This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state for a specified period of time before taking advantage of the benefits of that state’s citizenship.

Two cases are cited in footnotes related to the first and second “rights” described here.

Saenz v. Roe, 526 U.S. 489 (1999). “For the purposes of this case, we need not identify the source of [the right to travel] in the text of the Constitution. The right of ‘free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been ‘conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.’ ” Id. at 501 (citations omitted).

Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) (“without some provision . . . removing from citizens of each State the disabilities of alienage in other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.”).

An article at USConstitution.net takes a similar position on the consitutional status of the right to travel.

As the Supreme Court notes in Saenz v Roe, 98-97 (1999), the Constitution does not contain the word “travel” in any context, let alone an explicit right to travel (except for members of Congress, who are guaranteed the right to travel to and from Congress). The presumed right to travel, however, is firmly established in U.S. law and precedent. In U.S. v Guest, 383 U.S. 745 (1966), the Court noted, “It is a right that has been firmly established and repeatedly recognized.” In fact, in Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart noted in a concurring opinion that “it is a right broadly assertable against private interference as well as governmental action. Like the right of association, … it is a virtually unconditional personal right, guaranteed by the Constitution to us all.” It is interesting to note that the Articles of Confederation had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.

An Op-Ed in the Wall Street Journal this week argues states have considerable powers to protect public health: “While the federal government has limited and enumerated constitutional authority, states possess a plenary “police power” and have primary responsibility for protecting public health.”

States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.

“The Constitution,” Justice John Marshall Harlanwrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “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.”

Remember that the legislature of the Hawaiian Kingdom passed a law in 1865 exiling all persons with leprosy to Kalaupapa, and that law remained in effect until it was abolished in 1969, more than a century later.

And from an article this week in the New England Journal of Medicine:

Inside the country, isolation and quarantine orders have traditionally come from the states. Courts have typically upheld these orders in deference to the states’ broad powers to protect public health. Nevertheless, courts have occasionally intervened when a quarantine was unreasonable or when officials failed to follow necessary procedures. For example, in Jew Ho v. Williamson (1900), a federal court struck down a quarantine imposed by San Francisco in response to an outbreak of bubonic plague because it was racially motivated and ill-suited to stop the outbreak.

Although isolation and quarantine orders have been less common in recent decades, many states have isolated patients with tuberculosis who did not adhere to medication regimens. At least 18 states quarantined people returning from West Africa during the 2014 Ebola outbreak. In March 2019, Rockland County, New York, prohibited all minors who were unvaccinated against measles from entering any place of public assembly. In W.D. v. County of Rockland (2019), a New York State judge struck down that order, ruling that there was no emergency. Most states, however, do not require an emergency declaration in order to issue a quarantine.

But the article also cautioned about the limits of such powers.

Despite their breadth, the federal and state quarantine powers are subject to important constitutional limitations. First, as Jew Ho affirmed, quarantines cannot be imposed in a racially invidious manner. Second, governments must have a strong basis for the restrictions. Looking to case law regarding civil commitment, many scholars and some lower courts have concluded that isolation and quarantine are constitutional only when the government can show by clear and compelling evidence that they are the least restrictive means of protecting the public’s health. However, at least two federal courts reviewing postdetention challenges to Ebola quarantines held that the standard was not sufficiently well established to allow the claims to go forward. Third, persons who are detained, or whose liberty is otherwise restricted, are entitled to judicial review — traditionally under the writ of habeas corpus. Finally, when governments detain people, they must meet those people’s basic needs, ensuring access to health care, medication, food, and sanitation. Such standards are not only constitutionally compelled: they are critical to ensuring that detained persons comply with orders.estraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force, to safeguard state property and infrastructure, and to maintain the peace. In some states, individuals who violate emergency orders can be detained without charge and held in isolation.

If you’re interested in these issues, you might want to tune in to a 90-minute Zoom webinar on Monday night, March 23, “The Federal Government’s Legal Authorities in a Public Health Crisis: A Q&A with Benjamin Wittes and Steve Vladeck.”

As the COVID-19 crisis continues, the federal government has begun resorting to a series of emergency powers—including the Stafford Act, the Defense Production Act and the Public Health Service Act—in response. How far could these authorities be stretched? What would limit abuses of these powers? And how, if at all, do our individual rights under the Constitution constrain these crisis powers?

Join Lawfare Editor in Chief Benjamin Wittes (using the on-screen name of “Lawfare Zoom”) and Steve Vladeck, professor of law at the University of Texas School of Law, for a 90 minute live Zoom webinar on Monday, March 23 at 8:30 p.m. ET, in which they will discuss these issues and field your questions through the Q&A function on the webinar.

Join the event on Monday night by using this link: https://zoom.us/j/621465214