Right now there are large American states which have 50 times more Coronavirus cases in ratio/proportion than others, with hundreds of cases close to a thousand, and there are even small states where cases are zero or near to zero. Do American states have the power to close their borders from other states in a health emergency, is there a workaround to apply this, or can even the federal government give this power temporarily to states or something?
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Legally or physically ? It may be or may not be legal, but it would very impractical and extremely difficult to enforce or even control.– HilmarMar 17, 2020 at 12:58
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1@Hilmar not for Hawaii.– phoogMar 17, 2020 at 18:28
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2There are soooo many roads. While they might have "compelling governmental interest" in doing so, the practical "no". Besides, most wheat is grown in a few middle states, and lots of fruits/vegetables in California, people start to get hungry sooner than later.– RonJohnMar 17, 2020 at 23:27
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@RonJohn One would have to imagine commerce would be allowed to continue– Azor Ahai -him-Mar 18, 2020 at 0:42
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@AzorAhai but that's not closing the border.– RonJohnMar 19, 2020 at 1:49
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1 Answer
US Constitutional law generally recognizes the right of freedom of movement, e.g. in Corfield v. Coryell, 6 Fed. Cas. 546, Crandall v. Nevada, 73 U.S. 35, Paul v. Virginia, 75 U.S. 168. The more recent case Saenz v. Roe, 526 U.S. 489 affirms the position that restricting the "right to travel violates the Equal Protection Clause absent a compelling governmental interest", and one of the specific rights subsumed under the right to travel is "the right to enter and leave another State".
The "compelling governmental interest" is a reference to standard of judicial review known as strict scrutiny, where a law that restricts a fundamental right (the right to travel) is required for a "compelling state interest", is "narrowly tailored" to that purpose, and is the "least restrictive means".
It is highly likely that each state has a statute that grants broad powers to the governor in case of a state of emergency. Such an order would then have to be scrutinized strictly, with respect to the narrow tailoring and least restrictive aspects of the question. We would then have to analyze the specifics of the case and order.
answered Mar 17, 2020 at 15:04
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2In Europe, we are currently experiencing a multitude of restrictions that would be illegal in the absence of a state of emergency. In the EU, we also have a right of freedom of movement between the states which is now taken, not only between but also within the countries. Conclusion: in a state of emergency, it generally makes sense to allow the limitation of rights. Mar 17, 2020 at 23:59
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I should point out though that the US has 34 (national) states of emergency that are still in effect, including one pertaining to (non-)trade with Sudan and North Macedonia insurgency. Not all states of emergency are created equal, which is why the restriction on rights must be connected to the actual government interest.– user6726Mar 18, 2020 at 1:26
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4@not2savvy The very phrasing "limitation of rights" demonstrates a fundamentally different model between Europe and the US. In the US legal model, rights aren't something that you "get" and can be "limited" but rather that you intrinsically have and could be "infringed", and a general rule of "emergency justifies extraordinary powers" is an incentive toward emergency inflation. (Health quarantine is, however, a long-recognized compelling case for government's restricting individual liberty.) Mar 18, 2020 at 2:58
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2States are allowed to set up customs stations (under express U.S. Constitutional authority without regard to emergency circumstances), but can only do so for their own domestic regulatory and tax purposes that do not unduly interfere with interstate commerce under the dormant commerce clause, and may also charge duties comparable to the cost of doing the inspections. Most states do this for long haul semi-trucks. Mar 24, 2020 at 19:22
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@ohwilleke: That sounds like the summary of a fascinating answer. I just tried to ask the associated question here, if you would be willing to elaborate.– feetwet ♦Mar 26, 2020 at 0:38