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.

Historically, “states rights” and the “discretion” of state officials to impose different rules  on the basis of their claimed greater understanding of “local conditions” have been the mantra invoked to support a range of violations of rights, not just racial segregation.

As Harmeet Dhillon of the Center for American Liberty, the lawyer for the plaintiffs in the Hawaii case, noted during yesterday’s argument in Honolulu, Federal civil rights laws have been written specifically to insure that Federal courts have adequate authority to stop local officials — who typically claim some legitimate purpose — from violating individuals’ rights. A claim by state officials to be acting in a worthy cause should not put an end to the courts’ inquiries.

“The Governor must be constrained by reality,” Ms. Dhillon argued, “and the burdens on citizens’ rights must be adjusted accordingly.” From the bench (or, more precisely, from her Zoom room), Judge Otake said she “urged the state to continue to reassess the details” of the situation and whether continued restrictions are necessary. But that cautionary note to state officials didn’t make it into Judge Otake’s 35-page written opinion.

Key issues of concern to us in both of these cases include (1) how much, if any, of a showing of specific harm someone whose right to interstate travel is infringed has to offer in order to be entitled to judicial relief, and (2) how much of a justification the government has to offer for measures that infringe the right to interstate travel.

In the New York case, Jonathan Corbett argued, and Judge Schofield agreed, that travel is a fundamental right, that the New York quarantine rules impinge on that right, and that infringement of the right to travel is per se sufficiently harmful to create “standing” to request redress from the courts. Asst. Atty. Genl. Lawson countered that Mr. Corbett had not presented any evidence of specific economic harm that he has suffered or would suffer as a result of the quarantine rules. But Judge Schofield brushed off that objection.

The plaintiffs in the Hawaii case took a different approach, focusing primarily on their property interests in being able to use, or to rent out, their (second) homes in Hawaii. Judge Otake’s opinion in the Hawaii case doesn’t address infringement of the right to travel as per se damaging, only the potential economic harms.

Atty. Genl. Connors made the disingenuous argument, which Judge Otake unfortunately accepted, that requiring 14-day quarantine on arrival in Hawaii from out of state has no effect on the right to travel or on the short-term rental value of homes in Hawaii.

Most of the argument in both the New York and Hawaii hearings focused on what legal standard Federal courts should apply in deciding whether state laws or regulatory schemes enacted in the name of protection against disease are Constitutional.

In a 1905 vaccination case, Jacobson v. Massachusetts, the Supreme Court set the bar for states at the lowest possible level, requring them to show only that there is some “rational basis” for health rules in light of some legitimate government interest. But that decision predates extensive developments in case law on standards of review in other areas of Constitutional law, and its continued viability as a precedent for contemporary health rules that restrict rights is questionable.

Hawaii A.G. Connors argued that Jacobson v. Mass. is still good law and applies to health quratines, relying on the recent concurrence by Chief Justice Roberts to the Supreme Court’s decision in South Bay United Pentacostal Church v. Newsom. That decision upheld the denial of by the Ninth Circuit Court of Appeals of a temporary restraining order against certain Califiornia state quarantine rules. In response, Ms. Dhillon argued that the South Bay case involved different and possibly less fundamental rights than the right to travel, and that the concurrence to a per curiam opinion (a decision in which a majority of the judges reached the same outcome, but for different reasons) is not binding precedent.

In another recent case also discussed during yesterday’s arguments, Bayley’s Campground Inc. v. Mills, a Federal judge reviewing the evolution of the law since 1905 ruled that Maine’s state quarantine for interstate travelers is subject not to a mere “rational basis” test but to the highest standard, “strict scrutiny”. The District Court judge in that case denied an emergency injunction, but has not yet made a final decision in the case. The ruling on the preliminary injunction is now on interlocutory appeal to the First Circuit Court of Appeals in Boston.

Judge Otake went out of her way to rule that Hawaii’s requirements would satisfy even “strict scrutiny”.  But that would require a showing by the state, which doesn’t appear to have been made by Hawaii (and certainly wasn’t made by New York) that the restrictions imposed were the least restrictive ones that could serve their purpose.

Even if the standard is that the state must show only a “rational basis” for its rules, Mr. Corbett argued persuasively that the New York rules are so patently irrational as to fail, on their face, to show any rational relationship to their claimed purpose.

Among other irrational features, New York’s quarantine rules incorporate in their exceptions to the quarantine requirement for interstate arrivals all of the same exceptions for “essential workers” as the state’s “stay at home rules”. So any food service worker, supermarket or bodega clerk, or gas station attendant is allowed to take a vacation in Florida, or in Las Vegas, and return to New York without having to be quarantined. Other “non-essential” workers are required to be quarantined if they arrive in New York from states blacklisted by New York authorities. But presumably, these workers in essential categories are among those most likely to come in contact with other New Yorkers and to spread disease, if they have been infected in Florida, Texas, or wherever.

New York Asst. A.G. Lawson sneered at Mr. Corbett’s lack of medical expertise or expert evidence. But what evidence can or must one present to show a court that the opposing party’s arguments are irrational?

Mr. Corbett had also asked the court to enjoin the state of New York from requiring travelers to answer warrantless questions, or from arresting those who decline to do so. Presumably in response ot Mr. Corbett’s lawsuit, yesterday New York began claiming that the official looking questionnaire being presented to air travelers arriving at New York airports is purely voluntary and that there are no penalties for declining to fill out the form.

As a result of this change in New York policy and practice, there was minimal discussion of the issues of detention and questioning of travelers originally raised by Mr. Corbett.

In Hawaii, the hearing yesterday was originally scheduled to be held telephonically, but then changed to be held in open court in Honolulu. After Ms. Dhillon, the mainland plaintiff’s California-based attorney, had flown to Honolulu and been quarantined, the hearing was switched back to a remote hearing by videoconferencing.

Speaking from wherever she had been involuntarily quarantined, Ms. Dhillon noted during the hearing that while the state’s describes the requirement as “self-quarantine”, she was ordered into quarantine on arrival in Hawaii under explicit threat of arrest and criminal penalties.

Although it wasn’t raised during the argument yesterday, the Hawaii rule also appears to include some manifest irrationalities. It applies, for example, to individuals arriving from American Samoa, the only US state or territory where no cases of COVID-19 have been detected. American Samoa has been almost entirely isolated for months, to the extent that the US Navy was called upon to fly some critical (non-COVID-19 patients) patients to Hawaii for treatment unavailable in American Samoa. Hawaiian Airlines plans to resume flights to American Samoa next month. But because these are the only flights between American Samoa and any other US territory, Hawaii will act as de facto gatekeeper on all travel between American Samoa and the US mainland by anyone who can’t afford a yacht or a private jet.