This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020.
Student Author: Sharon Kimel
As the coronavirus pandemic continues to spread across the United States, state and local authorities have taken the lead in battling the virus, issuing “shut down” and “stay-at-home” orders affecting millions of Americans. Notably, over 30 of these orders have included measures to discourage interstate travel by including quarantine requirements related to interstate travel. In order to enforce such orders, some states have even gone so far as to monitor and stop cars with out-of-state license plates.
Given these unprecedented state actions, frustrated travelers may wonder: are restrictions and subsequent enforcement for interstate travel legal? Or are they arbitrary and capricious? The short answer is, yes, they are legal. But they are also arguably unjust in specific circumstances.
Citizens undoubtedly have a right to travel between states; that can only be limited by the federal government. However, our Constitution was designed to empower states on public health issues, which includes quarantine authority for those within their borders. More specifically, nearly 200 years ago the U.S. Supreme Court cited the 10th Amendment in Gibbons v. Ogden in its unanimous decision that the ability to impose isolation and quarantine conditions are largely reserved to the states. In this decision, Chief Justice John Marshall noted, “inspection laws, quarantine laws, [and] health laws of every description” were part of “that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government.”
Since the ruling in Ogden, courts have continued holding that states’ police power under the 10th Amendment supports the authority of a state to enact and enforce “health laws of every description”, which provides legal cover for state governors currently using executive orders to discourage interstate travel during the COVID-19 crisis. Even the CDC has previously said that the U.S. Department of Health and Human Services “defers to state and local health authorities in the primary use of their separate quarantine powers.”
Personal jurisdiction in law also strengthens the power of states to enforce such COVID orders on all persons within their borders. The landmark case, Pennoyer v. Neff, held that when a person travels within a state, they are subject to the jurisdiction of that state regardless of where they are domiciled.
On the other hand, the Privileges and Immunities Clause of the Constitution clearly states that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” In other words, discrimination against out-of-state persons while they are temporarily visiting is illegal. Therefore, situations where law enforcement are pulling over persons primarily based on out-of-state license plates—like Delaware police have done in recent weeks—could be unlawful.
With the above in mind, there is one more question left to contemplate: what can you do if you don’t like the state restrictions being imposed on you? The immediate solution: move elsewhere.
Unless the federal government imposes interstate travel restrictions, individuals have the ability to move freely between the states. This choice is also commonly known as “vote with your feet.” This option, of course, is limited by an individual’s employment and other obligations that tie them to their current state residence. The other, long-term solution is what we’ve been seeing in recent weeks in states such as Michigan, North Carolina, Kentucky, Ohio, Utah, and Maryland: challenge the orders by suing state governors and agencies. Neither option is desirable, as lawsuits can be a lengthy and expensive process. However, these options are what our laws currently offer us.
 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824).
 Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). See also Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (“Throughout our history the several states have exercised their police powers to protect the health and safety of their citizens. Because these are primarily, and historically, matters of local concern, the states traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.”); Black’s Law Dictionary 1196 (8`H ED. 2004); Ernst Freund, The Police Power: Public Policy and Constitutional Rights iii, 3 (1904).
 https://www.usatoday.com/story/news/politics/2020/04/15/coronavirus-multiple-states-see-protests-over-stay-home-rules/5142499002/ ; https://www.reuters.com/article/us-health-coronavirus-usa-michigan/michigan-residents-sue-governor-whitmer-over-coronavirus-pandemic-orders-idUSKCN21Y2IG ; https://www.washingtonpost.com/local/trafficandcommuting/covid-19-checkpoints-targeting-out-of-state-residents-draw-complaints-and-legal-scrutiny/2020/04/14/3fc0ed42-774e-11ea-b6ff-597f170df8f8_story.html; https://www.washingtonpost.com/opinions/2020/03/23/coronavirus-lawsuits-are-coming-thats-not-bad-thing/