|
CONSTITUTIONAL LAW: Contagion and the Right to Travel
h/t Instapundit[Harvard Law Review] - Not since 1918 has the United States faced the kind of wide-scale public health crisis that Americans face today. The novel coronavirus pandemic of 2020 jeopardizes multiple millions of Americans’ lives, especially the elderly and immunocompromised. It also stands to cripple the American economy with the real prospect of the nation plunging into a depression. The virus itself is more easily transmitted than other seasonal diseases like the flu. Each non-isolated case of novel coronavirus will infect 2 to 2.5 additional people compared to the flu, where each additional case will infect 1.3 other people on average. Moreover, it is more deadly than the flu. As I write, nearly 85,000 Americans have been infected, and over 1,000 lives have been lost to the pandemic. These numbers will surely grow as the challenges to respond to the crisis mounts. Public health resources are strained, and the testing capacity of the United States lags behind other nations. Public health experts and government officials face a stark choice: swift crackdowns on private movement or the possibility of mass mortality. To "flatten the curve," i.e., slow the exponential growth of new infections and avoid overwhelming the healthcare system, governors and mayors have mandated social distancing and instituted stay-at-home orders. And while the pandemic has touched every state in the nation, certain states like New York, New Jersey, and Washington have acute outbreaks. In response, some governors have instituted de facto travel bans for short-term visitors. The governors in Alaska and Hawaii issued mandatory self-quarantine periods for all persons entering either state for 14 days. Travelers whose final destinations are Florida or Texas coming from New York, New Jersey, and Connecticut must quarantine for 14 days, as must persons traveling from New Orleans to Texas. Rhode Island has instituted a similar policy directed at New Yorkers, including police stops of non-commercial vehicles entering the state with New York license plates, that has come under fire from the state American Civil Liberties Union chapter. These gubernatorial actions raise essential questions about states’ power to restrict the constitutional right to interstate travel that is grounded in dormant commerce clause doctrine. Observers are likely to initially turn to the foundational 1941 Supreme Court decision on the freedom of movement, Edwards v. California, for guidance because it captures restrictions on the movement of persons in a way no other case does. ...Rather, case law resolving the tension between public health and the movement of goods under the Commerce Clause long predated Edwards. Two livestock quarantine cases that date back to the late nineteenth century enforce states’ prerogative to establish rules to protect the public welfare against contagion, notwithstanding incidental burdens on interstate commerce. ...The quarantined goods cases are about the shuffling of commercial products across state lines, but the Supreme Court took the same approach to state officials’ purported work to curb the transmission of communicable disease. ...The nation finds itself in a historic moment that will change how Americans live for the foreseeable future and will leave an indelible mark on American society. Governors and state public health officers will use every arrow in their quiver to stem the spread of the novel coronavirus. That much is clear. Some of these actions will inevitably raise honest concerns about civil liberties, and Americans should endeavor to debate the wisdom of government policy even amid a crisis to hold government actors accountable and protect constitutional values. However, the simple reality is this: federal courts will not enjoin temporary measures that are facially calculated to save lives. Pikuah Nefesh doche Shabat (saving life come before even the Shabbat) Posted by: g(r)omgoru 2020-03-29 |
| http://www.rantburg.com/poparticle.php?ID=567271 |