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Will State Travel Bans Hold up to Constitutional Scrutiny?

With the aim of stunting the spread of COVID-19, a number of states have taken measures to limit travel in and out of their territories, raising questions about how effective those policies are, and, in some cases, their legality.

quarantine 4925797 640smallOne recent spat between the governors of New York and Rhode Island—RI initially banned travelers with New York license plates and people residing in the state before expanding the ban to all interstate travelers—involved Gov. Andrew Cuomo, of New York, threating a lawsuit over the constitutionality of the now amended travel restriction.

“With Rhode Island, they're a neighboring state. I think what they did was wrong, I think it was reactionary, I think it was illegal, but we'll work it out amicably I'm sure,” said Cuomo. “We have conversations going back and forth. No state should be using police to prohibit interstate travel in any way.”

Additionally, in Texas, Gov. Greg Abbott took a different tact, ordering self-quarantine for all travelers coming into the state from certain areas without discriminating against their residency or origin. Abbot’s executive order calls for a 14-day quarantine for those with a final destination in Texas flying from New York, Connecticut and New Jersey as well as New Orleans. In that same vein, Florida’s Gov. Ron DeSantis issued a similar order (PDF) along with a number of states considering measure to curb the risks associated with taking in travelers.

“The State of Texas continues to act upon the recommendations of top state, federal, and local health experts as we implement a comprehensive strategy to limit the spread of COVID-19,” said Abbott. “The New York Tri-State Area and the City of New Orleans have become major centers of this pandemic, and it is vital that we take necessary precautions to prevent additional exposure that could originate from people traveling from these areas to Texas.”

From Twitter

The Nation @thenation Apr 1

From Florida to Rhode Island, governors are targeting New Yorkers for special restrictions—and easy scapegoating.

In Texas, failure to comply with the order can result in as much as a $1,000 fine and up to 180 days in jail.

Some have pointed to the Constitution for guidance on the legality of the bans, specifically with consideration to the Privileges and Immunities Clause. According to the Legal Information Institute at Cornell Law, the clause, which is featured in Article IV, Section 2 of the Constitution, says “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

Per the Legal Information Institute, the clause is designed to protect the “fundamental rights” of citizens and prevent states from discriminating against those living in other places. “However, the Privileges and Immunities Clause extends not to all commercial activity, but only to fundamental rights,” according to information from Cornell Law. “Because of the ambiguity of the clause, much debate surrounds the particular rights which the Privileges and Immunities Clause protects. Some scholars believe that it protects the traditional common law rights conferred by particular states to their citizens.”

Further, information from the Institute notes the majority opinion in Corfield v. Coryell, indicates the clause merely protects “fundamental” rights, specifically life, liberty, safety, happiness and the right to acquire property.

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