Following separate hearings yesterday, two Federal District Court judges in New York and Hawaii denied applications for temporary restraining orders against state health orders mandating quarantine of some or all people arriving from out of state.
A ruling in Corbett v. Cuomo was issued orally, immediately following argument by phone, by Judge Lorna Schofield in New York. A written ruling in Carmichael v. Ige was issued late last night by Judge Jill Otake in Hawaii, following an afternoon hearing by videoconferencing.
Neither of yesterday’s rulings is a final decision in either of these cases, even at the District Court level. Both cases are continuing, and motions for temporary restraining orders can be renewed if conditions change and/or new evidence becomes available. The standard that must be met to persuade a court to issue a temporary restraining order or preliminary injunction, especially against government action, is always high, and is generally higher than what must be shown to support a favorable decision on the merits.
The judges issuing yesterday’s rulings indicated a disturbing willingness to accept conclusionary hand-waving, by anyone designated by the state as an expert, as sufficient to justify restrictions on the right to travel. During the oral arguments, both judges paid lip service to the idea that there might be some limits on what state authorities could do once they invoked the magic words, “because pandemic“. But neither Assistant New York Attorney General Matthew Lawson nor Hawaii Attorney General Clare Connors was prepared to say where those limits might be, and neither of the judges’ rulings spelled out meaningful criteria or limits to state officials’ discretion.
We are concerned, and the public should be concerned, if Federal courts wash their hands of oversight over state officials, and leave it to “discretion” of those state officials to decide for themselves to what extent they can infringe on people’s fundamental right in the name of whatever they consider to be the exigency of the moment, whether that be defense against Communism, anarchism, terrorism, pandemic, or tomorrow’s demon of the day.