You can’t order quarantines forever, and at some point a state of medical emergency becomes a new reality.
In an article last updated yesterday, The Wall Street Journal reported that New York, New Jersey, and Connecticut have instituted a mandate requiring travelers from states they designate as “experiencing a surge in COVID-19 cases,” to observe a 14-day quarantine upon arrival.
This mandate that took effect on midnight Wednesday carries with it varying consequences for non-compliance. In New York, a first-time violation merits a fine of $2,000.00 with subsequent violations earning fines of $5,000. Higher penalties would be enforced if the non-compliance caused harm. In Connecticut, there will be no fine, and in New Jersey, the quarantine would take the form of an “advisory.”
There’s one overarching problem with these mandated quarantines. They’re of questionable constitutional legality.
Following our independence from England, our nation stood as an inept giant. Yes, it was young. It was also financially broke, but perhaps even more importantly a powerless Congress led it. Under the Articles of Confederation, our first system of government, the states created a very loose alliance of sovereigns, so loose in fact that they were able to impose harsh restrictions upon each other. Each state could print its own currency, ignore other states’ currencies, and restricted interstate travel and commerce. Protectionist laws casting advantages to those citizens living within each state at the expense of their fellow countrymen loomed large, and there was nothing Congress could do about it. Such divisions could never work, and it is for this very reason that the nation’s leaders convened a Constitutional Convention with the aim of preventing the disintegration and fractionalization of the young confederacy. Protections against limitations in travel and interstate commerce were chief amongst the corrective measures implemented in the new Republic’s founding document.
Clearly, a state restricting an individual to a certain location for a fortnight simply because he or she is from a targeted state acts in a manner repugnant to interstate commerce and individual travel rights. The Supreme Court was explicit in this regard when it decided Saenz v. Roe, (1999). Here, the Court ruled that there are constitutionally prescribed travel protections including “the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state, and for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Mandatory interstate quarantines violate all three.
It is true that the governments may claim certain latitudes during times of crisis. For example, Congress is given the authority to suspend the privilege of Habeas corpus, “when in Cases of Rebellion or Invasion the public Safety may require.” And the states are afforded certain liberties if “actually invaded, or in such imminent Danger as will not admit of delay.” But these contentions do not apply to a pandemic.
President Trump declared a health emergency regarding SARS-CoV-2 on March 11, over 90 days ago. Since that time, we have been able to establish that there is no imminent exhaustion of our medical supplies. Despite “surges” in certain states, the nation’s daily new-case rate has flattened. As of this writing, the nation’s daily death rate has not been this low since March 30. In New York, arguably the state guilty of the nation’s worse COVID-19 mismanagement, there were a mere 742 new cases on June 23, the lowest since March 17, and the daily death rates rival those of March 22.
In the meantime, in Florida, one of those states experiencing a surge, the number of new cases for June 24 was 5,511, but the number of deaths was 45. And to add to the inconsistency in the data, New York carries a 1,611 death per million rate compared to Florida’s 153, and an active case per million rate of 294,660 compared to Florida’s 84,570.
Adding to the absurdity, Florida presently has a quarantine still in place for visitors from New York similar to the quarantine New York implemented against Floridians on Wednesday, albeit it Florida’s is voluntary one, begging the question just who needs to be protected from whom?
As I explain in my book, Coronalessons, obtrusive interventions such as quarantines, shutdowns, and border closures only work to keep the virus out of a country. But in America, the virus is already here. In Coronalessons, I also observe the Constitution, miraculous as it may be, is a very fragile document, easily ripped and irreparably destroyed. The right to freely move from one state to another and engage in interstate commerce is one of the hallmarks of our Constitution. Although it may be appropriate to briefly restrict our interstate travel in the name of safety, morale, health, or welfare, prolonging these restrictions, as we are presently doing, threatens to hurt us much more than it will aid us.
The only real interventions we can take until the development of a vaccine or definitive treatment is for the elderly and the infirm to observe social distancing measures, for all of us to engage in frequent hand-washing, surface sanitation and mask use when in public places. More aggressive interventions are mere opportunities for governments and people in authority to extend their ambits of power. It is time for us to end these random and capricious interstate quarantines.
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