Oral arguments have been scheduled by two different Federal District Court judges for this Thursday, July 2, 2020, on motions for temporary restraining orders against enforcement of separate state health orders mandating 14-day quarantine of all people arriving in New York or Hawaii from out of state.

Corbett v. Cuomo will be argued at 2 p.m. EDT by telephone in New York; Carmichael v. Ige will be argued in person (and not available for remote auditing) at 11 a.m. HST in Hawaii.

The Hawaii quarantine order, as we’ve discussed previously, applies to anyone arriving from out of state. The New York order only applies to people who have visited certain states designated by New York authorities, but those states include almost half the US population. The blacklisted states include Georgia and Texas, so anyone who changes planes in Atlanta, Houston, or Dallas-Ft. Worth — all major airline hubs — en route to New York is affected, even if they are coming from some other, less-infected state.

As the complaint in the New York case notes, it’s unclear whether those involuntarily quarantined in New York will be held in jails, hospitals, or some other locations, but according to a public statements by New York Governor Cuomo cited in the complaint, they are to be detained at their own expense.

On its face, the New York order applies to anyone arriving in New York who has recently been in any of the blacklisted states, even if they don’t intend to stay in New York. This would include people changing planes in New York, or passing through on the short New York section of Interstate 95 or on the Northeast Corridor between New England and New Jersey, Pennsylvania, and points south and west. All routes between New England and the rest of the US pass through either New York or Canada. With the US-Canada border mostly closed, enforcement of the New York travel restrictions would render New England an isolted island accessible only by air.

In addition to the 14-day quarantine, New York state has also begun demanding that each interstate traveler arriving by air (regardless of their state of residence or whether they have visited any of the blacklisted states) complete and sign a written declaration (Exhibit B to the complaint) about themselves, their business affairs, and their travels.

The Hawaii and New York quarantines and the New York questionnaire for interstate air travelers are all backed with threats of arrest and fines for noncompliance.

The New York quarantine order and travel declaration are being challenged by Jonathan Corbett, who has his primary residence and business interests in Brooklyn, New York, but is also a member of the California bar who practices law in California. Before his admission to the bar, Mr. Corbett had brought multiple pro se lawsuits challenging restrictions on air travel and searches of travelers, including the TSA’s use of “virtual strip-search” imaging machines.

Significantly, in light of the written declaration that the state of New York is now ordering arriving air travelers to fill out and sign, Mr. Corbett has also previously challenged administrative interrogations of air travelers (who aren’t suspected of any crime) by, or at the behest of, the TSA. That case was dismissed without the court reaching the Constitutionality of administrative interrogation of travelers. So far as we know, Corbett v. Cuomo is the first time this issue has arisen in a COVID-19 quarantine case.

There’s extensive case law on administrative searches, but very little on administrative interrogations. Mr. Corbett argues, and we concur, that he has an absolute right to stand mute in response to interrogatories by state authorities at state borders or airports.

In the current circumstances, it’s tempting to give health authorities a free pass for whatever they do, “because pandemic”. But that would be a mistake. We’ve already seen what happened when authorities were given free rein to impose new restrictions on travelers after September 11, 2001, “because terrorism”. Many of those measures had no rational relationship to the prevention of terrorism, were implemented without regard for Constitutional rights, and have become permanent, or effectively so.

How long will the current health emergency last? And will Federal, state, and local government agencies return to their prior practices at airports and borders if and when the emergency is declared to have ended, or will restrictions imposed during the pandemic become the permanent “new normal”?

If our Constitution is to have meaning, and if there is a sufficient justification for restrictions on travel, it should be possible to defend those restrictions on the basis of the Constitution. It should not be necessary to argue for suspending the Constitution.

As Mr. Corbett argues in his amended complaint and motion for a temprarty restraining order, the New York quarantine order and traveler questionnaire don’t meet that standard.

Mr. Corbett doesn’t argue that quarantine orders are always Constitutionally impermissible, but that this one fails even the least stringent test for Constitutionality. The Governor and the state of New York have presented no evidence or argument whatsoever that there is any rational relationship between the order and any health or other government interest.

Quarantines can be useful to restrict the spread of a disease from areas where it is prevalent to areas where it is not. But at the moment, the prevalence of COVID-19 is as great in New York state as it is in many of the states being blacklisted by New York. Restricting movement from one infected place to another equally-infected place does nothing to reduce the risk of infection to people in either of those places.

Further evidence of the irrationality of the quarantine order as a health measure is provided by the fact that it applies only to people arriving from other states, and not to people arriving in New York from other countries.

Nor does it apply to intrastate travelers, even people traveling from more heavily-infected parts of the state to less heavily-infected parts of the state.

Someone who takes a twelve-hour trip by Amtrak and the Long Island Railroad from Niagara Falls to Montauk, with a change of trains and a layover in a crowded enclosed underground waiting room at Penn Station in New York City, is not required to be quarantined. Nor is someone who arrives from any other country in the world. But someone who takes a 90-minute flight from Raleigh-Durham, North Carolina, to New York City has to be quarantined for 14 days after their arrival.

There is no rational basis for this order. Rather, it reflects an irrational presumption that the source of contagion, as of all “threats”, is the foreigner, the other, the person on the other side of an arbitrary political boundary such as a state line.  But a virus knows no borders. The courts should recognize, and reject, this implict basis in demonization of the other and the foreign as the basis for these irrational orders.

Mr. Corbett has called Governor Cuomo’s bluff, inviting the Governor and New York state officials to come forward with the evidence they should have had in hand before issuing the quarantine order to show a rational relationship to its ostensible health purpose.

The Hawaii case, Carmichael v. Ige, was brought by a group of plaintiffs including both  mainland US residents who own (second) homes in Hawaii, and Hawaii residents who want to travel to the mainland to visit family or for other reasons. The US Federal government has sought to intevene on the side of the plaintiffs, but to date the court in Hawaii has not given the US permisison to participate in the case.

The state of Hawaii may be trying to moot the lawsuit, or at least make it not worth the plaintiffs’ while to pursue it, by revising its quarantine orders. Under the revised orders, people arriving in Hawaii will be exempt from the requirement for quarantine if they can show evidence of a negative result from a COVID-19 test conducted “prior to arrival from any testing location approved by the Hawai‘i State Department of Health”.

The change in Hawaii’s quarantine rules will take effect August 1st. The form of evidence of test results, the time period before arrival in Hawaii within which the test must have been taken, and the list of approved testing locations have not yet been announced. No plans have been announced to change the procedures used to enforce the quarantine requirement.

Meanwhile, as we suspected might happen, the North Carolina county that tried to impose restrictions on entry into the county by non-residents has reportedly reached a settlement with non-resident owners of real estate (mainly seasonal second homes) who had challenged the county’s travel restrictions. The settlement agreement comes following changes to the county’s health orders that have allowed non-resident owners of Dare County homes to enter the county. Today further proceedings in the Federal lawsuit against Dare County were stayed in contemplation of dismissal of the case once the settlement has been put into effect. The terms of the settlement have not yet been made public.