By Robert Wheeler, III, JHBL Staff Member
Faced with a surging number of COVID-19 cases, state governors and municipality administrators find themselves pitted against each other while trying to balance the constitutional rights of citizens against the exigencies of a public health crisis. One governor last week caused headlines with her unprecedented plan to protect her state’s borders.
In response to concerns over the spread of the Coronavirus (COVID-19) this month, Rhode Island Governor Gina Raimondo notified the public of an order restricting travel into the state. The order would allow law enforcement officers to stop cars and knock on doors to identify people who had traveled from the state of New York. Governor Raimondo explained the policy by expressing, “Right now, we have a pinpointed risk that we need to address, and we need to be very serious and that risk is called New York City.” Law enforcement officers began monitoring highways with the intention of pulling over cars with New York state license plates. The goal of the monitoring plan was to ensure individuals who traveled into Rhode Island from New York State would follow orders to self-quarantine for fourteen days. After consulting with lawyers, Governor Raimondo believed she could legally enforce the order.[1]
Rhode Island’s plan received immediate backlash and criticism raising constitutional concerns. Governor of New York, Andrew Cuomo, called the policy “clearly unconstitutional, and said he would sue the state of Rhode Island if they did not end the policy.[2] ACLU of Rhode Island director, Steven Brown, issued a statement with similar concerns about Rhode Island’s policy. In his statement, Director Brown questioned whether the policy violated the Fourth Amendment of the United States Constitution, protecting against unreasonable search and seizures without probable cause. In his statement, Director Brown highlighted, “[u]nder the Fourth Amendment, having a New York state license plate simply does not, and cannot, constitute ‘probable cause’ to allow police to stop a car and interrogate the driver, no matter how laudable the goal of the stop may be.”[3]
After backlash and criticism, Governor Raimondo repealed the order to specifically target New York state license plates. Instead, a new order was issued ordering every car entering Rhode Island from Connecticut highways be pulled over for police instruction. Each car will be given orders to self-quarantine for fourteen days.[4]
Rhode Island is not the only area in New England where travel restrictions are a topic of debate. A petition to close the bridges to Cape Cod to only year-round residents, medical personnel, and essential deliveries has gathered over 9,800 signatures. Year-round residents are concerned the local area’s medical facilities and grocery stores do not have the capacity to serve an increase in demand. On the other hand, part-time residents argue they should have access to their property they own and for which they pay local property taxes.
Similarly, Maine Governor Janet Mills has requested part-time Maine residents delay their travels to their vacation homes.[5]
Also in Maine, the small island community of North Haven voted to ban anyone who isn’t a year-round resident from visiting during the Coronavirus outbreak. The reasoning behind North Haven’s proposed travel ban is similar to thought process behind the proposed ban in Cape Cod. North Haven has limited medical resources available in the case of a community outbreak. According to the Ambulance Director in North Haven, “We just don’t have the infrastructure to handle something like this.” Additionally, there is only one nurse practitioner on the island of North Haven.[6] Two days after President Trump declared a national emergency, the islands’ three elected officials issued the order banning all visitors.
There are reports that Maine’s governor’s office had constitutional concerns about the ban. According to North Haven’s town administrator, the legal concerns had to do with the Civil Rights Act of 1871, which allowed an individual response to a violation of civil rights. The governor’s office attorney advised North Haven to rescind the ban, and within 48 hours after the ban was issued, it was withdrawn.
The unresolved question is whether it is legal for communities like North Haven to enact these bans. In Maine, according to Jeff Thaler, a University of Maine School of Law professor, “[b]asically, if something isn’t expressly prohibited by the state constitution or state statute, municipalities can do it.” Thaler did caution that even if allowed by a state, a ban still can’t violate the U.S. Constitution.[7] This form of governance is sometimes called a “total unless limited” home rule, and allows flexibility for municipalities to perform police powers such as protecting the health and safety of their residents.[8]
As discussed, one of these police powers is the enactment of a quarantine. If challenged, this would not be the first time a court has determined the legality of a quarantine in response to the outbreak of a disease. In 1895, during an outbreak of smallpox in Brooklyn, the Court of Appeals of New York determined a health commissioner lacked the power to quarantine individuals who refused a smallpox vaccine where there was no proof of infection or exposure to the disease. The Court held that local authority may have reasonable discretion during times of an emergency, but enactments that restrict individual liberties must be construed strictly.
It seems that with every day that passes, new measures and efforts are being taken to combat the spread of the Coronavirus. If the actions of Rhode Island, Cape Cod, and North Haven are any indication, additional communities may soon impose ordinances restricting travel. The leaders in both Rhode Island and North Haven backed away from enforcing their initial travel restrictions. If a similar travel ban or restriction is enforced in the future, it seems inevitable that a constitutional lawsuit will follow.
Robert Wheeler, III is currently a second-year law student at Suffolk Law University and a staff member of the Journal of Health and Biomedical Law. He previously graduated from Miami University where he double majored in History and American Studies.
[1] https://www.bloomberg.com/news/articles/2020-03-27/rhode-island-police-to-hunt-down-new-yorkers-seeking-refuge
[2] https://www.cnn.com/2020/03/27/us/rhode-island-tracking-down-new-yorkers/index.html
[3] http://www.riaclu.org/news/post/aclu-statement-on-governors-plans-to-give-state-police-power-to-stop-cars-w?fbclid=IwAR1E_cm2pYq_gtCupu7iOOP9K4dMSlMytitbtEte2Cj71lqL6XFw7QY87JY
[4] https://www.bloomberg.com/news/articles/2020-03-29/rhode-island-ends-policy-of-stopping-cars-with-new-york-plates
[5] https://www.necn.com/news/coronavirus/governor-tells-out-of-staters-not-to-travel-to-maine-for-an-early-vacation/2250580/
[6] https://www.necn.com/news/coronavirus/coronavirus-pandemic-prompts-maine-island-to-ban-visitors/2248440/
[7] https://www.politico.com/news/magazine/2020/03/28/a-tiny-island-tries-to-shut-out-the-virus-152382
[8] Janice C. Griffith, Role of State Governments in the Sharing Economy, Legal Studies Research Paper Series, Page 236
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School