While the origin of the nickname has been hotly debated, many of New York’s nicknames as “The Empire State” trace back to a comment attributed to George Washington who stated that the state’s main geographical advantages were due to the “seat of an empire.” . After reading Governor Andrew M. Cuomo’s new out-of-state guidelines, it was easy to conclude that he was taking the state’s nickname literally. Outsiders are subject to restrictions comparable to traveling to another country. The question is whether these restrictions stand up to judicial review. It could prove to be a narrow question in some specific circumstances.
We previously discussed how states enjoy significant respect in fighting a pandemic. However, a pandemic ordinance is not an absolute license to waive the restrictions imposed by the United States Constitution, including travel rights, interstate trade, and other constitutional protections.
The guidelines that require testing and quarantine for travelers from other states:
For travelers who have been in another state for more than 24 hours:
- Travelers must receive a test within three days of departure from that state.
- The traveler must be quarantined for three days upon arrival in New York.
- On day 4 of their quarantine, the traveler must receive another COVID test. If both tests are negative, the traveler can exit quarantine early after receiving the second negative diagnostic test.
For travelers who have been in another state for less than 24 hours:
The traveler does not need a test before leaving the other state and does not need to be quarantined upon arrival in New York state.
However, the traveler must complete our travel form upon entry into New York State and take a COVID diagnostic test 4 days after arriving in New York.
These are some very important limitations. The question is whether a court would find the borders rational in light of the exceptions, including “travelers from states bordering New York will continue to be exempt from travel advice.” That’s a huge population from countries with increasing Covid infections. States like New Jersey and Connecticut have been added to the quarantine rules of states like Massachusetts. Additionally, the question arises as to the basis for differentiating travelers based on their 24-hour status or the adequacy of a three-day test when the incubation could take longer. It can take up to 5 days for symptoms of Covit-19 to develop. A post-exposure study of false-negative rates found that “during the four days of infection prior to the onset of symptoms, the likelihood of a false-negative PCR reading increased from 100 percent on day 1 to 67 percent on day 4”.
In Edwards v People of State of California (1941), the Supreme Court rejected restrictions placed on Oklahoma people for denying the “right to freedom of movement” that is part of the “right to national citizenship.”
The Court has recognized that the right to travel is “evasive” and “differently assigned to the privilege and immunity clause of art. IV, on the trade clause and the privilege and immunity clause of the fourteenth amendment. “NY Attorney General v Soto-Lopez, 476, US 898, 902 (1986). However, it has also stated that it “hugs. . . the right of a citizen of one state to enter and leave another state, the right to be treated as a welcome visitor rather than an unfriendly foreigner when temporarily in the second state, and for those travelers who choose one permanent residents decide the right to be treated like other citizens of that state. “Saenz v. Roe, 526, US 489,500 (1999). See also New Hampshire Supreme Court v Piper (Finding Restrictions on Interstate Travel Could Violate the Privileges and Immunities Clause). Any discrimination against non-residents must be based on a significant state interest (which seems clear), but the state could also be asked to identify a means of achieving that end that is least restrictive. Even with a rational baseline test, the exceptions could prove problematic.
If a court does not find these restrictions clearly justified or scientifically justified, aspects of the guidelines may be successfully challenged. In particular, it is not clear how effective these guidelines would be with such exemptions. In 1902, in Compagnie Francaise De Navigation a Vapeur v State Board of Health, the Supreme Court upheld a quarantine for people traveling to New Orleans when that city was grappling with a deadly yellow fever outbreak. However, this was especially true for anyone inside or outside Louisiana. The New York Policy treats travelers outside of the state as if they were from any other country and gives preferential status to allied jurisdictions along their borders.
Again, New York and other states are beginning with considerable caution in dealing with a pandemic. However, it also needs to be able to provide a rational basis for not imposing these limits on millions of travelers outside the state, as well as a scientific basis for the testing requirements. Given the millions who immigrate and emigrate to the state as liberated persons, these borders could be challenged as arbitrary or ineffective or both.