Jan 26 2021

First appellate-court ruling on COVID-19 travel restrictions

Last week, the First Circuit Court of Appeals in Boston issued the first ruling by a Federal  Federal appellate court concerning restrictions on the right to travel imposed on the basis of the COVID-19 pandemic.

There have been other Federal District Court rulings on COVID-19 travel restrictions, as we have reported previously. But so far as we can tell, no other Federal appeals court has yet ruled on any of these cases. And while there have been other Federal appellate decisions concerning restrictions on gatherings and activities, they haven’t involved the right to travel.

The decision by a panel of the First Circuit came in the case of Bayley’s Campground v. Mills, which we mentioned before in a round-up of COVID-19 right-to-travel cases.

Bayley’s Camground v. Mills is a challenge by the owners and several frequent out-of-state guests of a campground in Maine to an Executive Order by Governor Janet Mills requiring 14 days self-quarantine by anyone entering the state of Maine, and prohibiting the operation of lodging services, including campgrounds, with limited exceptions.

Ruling on an interlocutory appeal of the denial of a motion for a preliminary injunction, the First Circuit panel upheld the District Court decision denying an injunction against enforcement of the Maine state order while the case is pending,  Most of the First Circuit opinion, however, is favorable to future challenges to state actions that encroach on the right to interstate travel.

First, the Court of Appeals found that it could consider the merits of the case, even though the challenged order was modified and partially rescinded while the case was pending:

A contrary ruling… would run the risk of insulating from judicial review an allegedly overly broad executive emergency response, so long as it is iteratively imposed for only relatively brief periods of time. Accordingly, we conclude that the plaintiffs’ request for injunctive relief from [the Executive Order’s] self-quarantine requirement is not moot,… and so we turn to the merits.

Second, the Court of Appeals accepted the District Court’s premise that there is a Constitutional right to interstate travel and that any state action which restricts the exercise of that right is subject to “strict scrutiny” including a requirement for the government to show that no less restrictive measure could adequately achieve the “compelling governmental interest” that is the goal of the restrictive measure.

The Court of Appeals  found that the state of Maine had produced sufficient evidence of the compelling need for the self-quarantine and other travel restrictions that the campground owners and would-be campers were unlikely to succeed on the merits. But the ruling concerns only the request for a temporary order while the case is pending.

Proceedings in the District Court were stayed pending the interlocutory appeal, but will now resume. No trial or final decision appears imminent.

Jan 19 2021

“Put them on the no-fly list!”

Flowchart of no-fly lists and the U.S. government's no-fly decision-making process.

[“How do you get on the no-fly list?” Larger image; PDF with legend.]

In the aftermath of the storming of the U.S. Capitol last week, there’s been a confused cacophony of calls to “put the rioters on the no-fly list.”

At the same time, there have been equally confusing claims and denials that some people found out that they had already been “put on the no-fly list” when they were denied boarding on flights home from Washington.

Are these people “on the no-fly list”? Could they be? Should they be? Is this legal?

More generally:

How do you get on the no-fly list? How do you know if you are on the list? How do you get off? What substantive and procedural legal standards apply?

The answers to all of these questions are much more complicated, and different, than many people seem to think — including the chairs of relevant Congressional committees, who ought to know better. The reality is that:

  1. There isn’t just one U.S. Federal government no-fly list — there are several, created by different agencies for different purposes.
  2. There are also non-list-based ways that real-time no-fly decisions can be made.
  3. No-fly decisions can be, and are, made independently, on the basis of different lists and other criteria, by multiple Federal agencies and by individual airlines.

So a better starting point for understanding what’s happening — before we can begin to assess whether it is legal or what should be happening — is to ask, “How can a would-be passenger be prevented from boarding a scheduled airline flight?”

The diagram above (larger version; PDF with legend of acronyms and color-coding) gives only a summary of the U.S. government’s no-fly decision-making process, not including individual airines’ no-fly decision-making practices. (We’ve published versions of the diagram before. The latest version above has been updated to include the Angel Watch Center, the CDC Do Not Board List and Lookout List, and the Watchlisting Advisory Council.)

As discussed in more detail below, no-fly decisions can be based on any of the following:

  • U.S. government no-fly orders:
  • Airline no-fly decisions, based on:
    • Airline conditions of carriage.
    • Airline no-fly lists (created and maintained separately by each airline).
    • Other non-list-based “rules” interpreted and enforced by airlines (most significantly the entry requirements described in the Timatic “travel information manual”).

How does all this work? Here are some FAQs about the no-fly list and no-fly orders:

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Dec 17 2020

Lawyers who challenged “no-fly” order finally get paid

Dr. Rahinah Ibrahim’s lawsuit against the US Department of Homeland Security came to a close this week with an order by Judge William Alsup of the U.S. District Court for the Northern District of California dismissing Dr. Ibrahim’s complaint after the Federal government finally paid  out a settlement to Dr. Ibrahim’s lawyers for successfully representing her in more than a decade of litigation.

The dismissal come more than fifteen years after Dr. Ibrahim was denied boarding and wrongly arrested at San Francisco International Airport when she tried to board a flight to a conference in Hawaii where she was scheduled to present a paper related to her doctoral research in architecture at Stanford University. Dr. Ibrahim was recovering from an emergency hysterectomy and in a wheelchair, and needed assistance from paramedics while in the lockup at the airport before she was eventually released without charges.

Seven years ago, after two interlocutory appeals to the 9th Circuit Court of Appeals and then the first and to date only trial in a case challenging a “no-fly” order by the US government, Judge Alsup ruled that Dr. Ibrahim’s rights had been violated by the government’s secret and wrongful blacklisting of her and denial of her right to travel, and ordered the government to remove Dr. Ibrahim from  its “no-fly” blacklist.

Before the trial, Attorney General Eric Holder signed an apparently perjured declaration certifying that it would cause grave harm to national security to disclose whether or why the government put Dr. Ibrahim on the no-fly list. But in his decision, Judge Alsup revealed what the government had known all along: The only reason Dr. Ibrahim was put on the no-fly list in the first place was that an FBI agent on the mosque-watching detail mistakenly filled out the blacklist and watchlist “nomination”  form incorrectly.

The government chose not to appeal Judge Alsup’s trial judgement, which became final.

But where does that leave Dr. Ibrahim, or her lawyers?

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Dec 10 2020

Old business for a new administration

What should the new Presidential administration do about the Department of Homeland Security and the associated laws, regulations, and homeland-security industrial complex?

Neither freedom of movement, other human rights, nor the DHS are among the self-described priorities of the incoming Biden Administration.

But for better or worse, it isn’t hard to come up with our short list of recommendations to the Biden transition team and to members of Congress who will be questioning nominees for Secretary of Homeland Security and other DHS leadership positions including the Administrator of the Transportation Security Administration.

The same agenda of unfinished business (PDF) that we called out in our submissions to Congress and the Obama transition team after the election twelve years ago still face the incoming administration today, three Presidential terms later.

These include actions that could have been taken by previous Presidents, and should be taken by the new President, by executive order or by promulgating regulations.

They also include legislation that could and should be taken up by Congress, as well as questions that Congress and the public should ask of nominees for the DHS.

We wish that some of this unfinished business had been attended to by previous administrations and members of Congress.  But it hasn’t. The problems with the DHS and the attacks on freedom of movement are bipartisan. Nothing has been done by either Republican or Democratic administrations or members of Congress to address them.

But we’re here, and we’re not going away. Ignoring these problems won’t make them disappear, or silence the critics of the DHS and the defenders of the right to travel.

It’s time for the President and Congress to act — and for the public to resist if they don’t.

Nov 25 2020

Airlines call for new app-based air travel controls

During  its online annual general meeting this week, the International Air Transport Association (IATA) rolled out a  new proposal for an app-based system of control over air travel that IATA is proposing for use by its member international airlines and by governments.

The scheme is being promoted as a response to the COVID-10 pandemic, but would institutionalize structures and practices with the potential for continuing and wider abuse.

IATA is calling its scheme the IATA Travel Pass. As described in these slides,  it would require would-be air travelers to enter both personally identifying information (most likely passport or other ID-card details) and records of tests and/or vaccinations into an IATA  smartphone app.  The data would  be processed by the algorithms of a “rules engine” to detemine whether to issue an “OK to travel” permission message. The output of this algorithmic decision would be available for use by both airlines and governments.

The intent of the IATA proposal is to create an infrastructure for sharing of data and travel permission decisions, at any point before or after the journey, with both airlines and governments, on the basis of an open-ended ruleset:

Of course IATA’s new proposal has all the defects of any smartphone-based travel surveillance or control regime that we discussed back in April when Hawaii tried out such a scheme. IATA is silent on what is to happen to  a traveler who doesn’t have a smartphone, charged-up and operable, with them when they try to travel.

And what about travelers without passport? No passport is currently required, even for international flights, within some free-movement zones such as within Mercosur, ECOWAS, or the European Union, or between the UK and Ireland.

But that’s not the worst aspect of the IATA proposal. Unlike Hawaii’s app-based location reporting system, the IATA app would go beyond surveillance to incorporate an algorithmic decision-making system for prior restraint of the right to travel.  Very disturbingly, there’s no mention in the IATA proposal of who would control the algorithmic ruleset, leaving it wide open to mission  creep and abuse by governments worldwide.  There’s no apparent way to restrict the nature of the rules or the purposes — blacklisting? discrimination? profiling? retaliation? — for which they could be used. Deployment of a general-purpose algorithmic travel control app for use worldwide would invite abuse.

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Nov 06 2020

Canada copies US “Secure Flight” air travel controls

While we were watching US election returns, our neighbors to the north were adopting new travel regulations that incorporate some of the worst aspects of the US system of surveillance and control of air travel, and in some respects go even further in the wrong direction.

Canadian authorities don’t generally want to be seen as imitating the US or capitulating to US pressure. There was no mention in the official analysis of the latest amendments to the Canadian regulations of the US models on which they are based. But according to the press release this week from Public Safety Canada, the latest version of the Canadian Secure Air Travel Regulations  which came into force this week for domestic flights within Canada as well as international flights to or from Canada include the following elements, each of which appears to be based on the US Secure Flight system:

  1. All air travelers will be required to show government-issued photo ID. The Canadian ID requirement to fly is now explicit, unlike the de facto ID requirement that the US Department of Homeland Security is attempting to impose and already wrongly enforcing, in some cases, without statutory or regulatory authority. The Canadian rules appear to reflect the authority to deny passage to air travelers without ID that the DHS has sought, but has not yet been granted, in the US.
  2. Fly/no-fly decision-making will be transferred from airlines (making binary fly/no-fly decisions on the basis of a no-fly list provided by the government) to a government agency. After receiving information about each passenger from the airline, Public Safety Canada will transmit a permission messages to the airline with respect to each would-be passenger on each flight,  with a default of “not permitted to board” if no message is received by the airline from the government. Exactly this change was made in the US through the Secure Flight regulations promulgated in 2008. This change serves two purposes for the government: (A) it provides a basis for building positive real-time government control over boarding pass issuance into airline IT infrastructure, converting every airline check-in kiosk or boarding-pass app into a virtual government checkpoint that can be used to control movement on any basis and for any reason that the government later chooses, and (B) it enables the switch from blacklist-based no-fly decision-making to more complex and opaque real-time algorithmic pre-crime profiling  based on a  larger number of factors.
  3. Air travelers in Canada will be required to provide the airline  with their full name, gender, and date of birth, as listed on government-issued ID, and airlines will be required to enter this data in each reservation and transmit it to the government 72 hours before the flight or as soon as the reservation is made, whichever comes first. All of this is exactly as has bene required for flights within the US since the coming into force of the DHS Secure Flight regulations. This additional information about each passenger enables the government to match passengers’ identities, in advance, to other commercial and government databases, and thus to incorporate a much wider range of surveillance and data mining into its profiling algorithms.
  4. Travelers will be able to apply to the government for a “Canadian Travel Number” which, if issued, they can enter in their reservations to distinguish themselves as whitelisted people from blacklisted people with similar names and/or other similar personal data.  This Canadian Travel Number is obviously modeled on the “redress number” incorporated in the US Secure Flight system. The goal of this “whitelist number” is to reduce the complaints and political embarrassment of the recurring incidents of innocent people with similar names, including  children, being mistakenly identified as blacklisted people, and denied boarding on Canadian flights. The problem, of course, is that this does nothing to help the innocent people who are correctly identified as having been blacklisted by the government, but who were wrongly blacklisted in the first place.

As our Canadian friends at the  International Civil Liberities Monitoring Group put it in a statement this week:

These regulations do not address the central, foundational problems that plague Canada’s No Fly List system and will continue to result in the undermining of individuals’ rights as they travel….

The Canadian government had a solution from the beginning, and they still do: abolish the No Fly List. If someone is a threat to airline travel or to those in the region they are traveling to, charge them under the criminal code and take them to court where they can defend themselves, in public.

It’s time to be done with secret security lists once and for all.

Aug 31 2020

8th Circuit finds TSA agents can be liable for assault

A panel of the 8th Circuit Court of Appeals decided today, over a dissent, that TSA checkpoint staff at airports (“Transportation Security Officers”) are “officer[s] of the United States … empowered by law to execute searches… for violations of Federal law”, making TSOs liable for damages if they commit assault, battery, or certain other torts against travelers.

With today’s decision in Iverson v. TSA the 8th Circuit joins the 3rd Circuit (en banc) in what is now a 2-1 split with the 11th Circuit, which ruled in 2014 that TSOs, despite their title and the fact that their primary job is to carry out searches, are not “officer[s] of the United States … empowered by law to execute searches… for violations of Federal law” and thus are completely immune from liability for even intentional assaults on travelers.

Most people unfamiliar with the law assume that the government is generally liable for damages if its agents attack innocent citizens. While the law is complex, the general principle is just the reverse: The US government generally enjoys “sovereign immunity” — a despicably undemocratic vestige of the idea that the king is above the law — and private individuals can sue the government only with the government’s permission.

There are exceptions to this principle, in the form of laws that “waive sovereign immunity” for certain offenses, as well as exceptions to the exceptions. The dispute with respect to liability or impunity for violent or negligent TSOs revolves around the interpretation of the language in Federal law defining one of those exceptions to an exception.

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Aug 11 2020

TSA considers new system for flyers without ID

According to a solicitation to potential contractors published last week, the Transportation Security Administration (TSA) wants to outsource its current questioning of airline passengers without ID, and its decisions about which travelers without ID to allow to travel and which to prevent from flying, to a fee-based system operated through a cellphone app provided by a private contractor and based on (secret) commercial databases.

There’s some good news and some bad news in the TSA’s posting of this Request for Information.

First, the good news:

1. The TSA admits that people can and do fly without ID.

According to the TSA’s Request for Information:

Prior to the COVID-19 National Emergency, TSA encountered over 2.5 million passengers a day and, on average, 600 instances of passengers without acceptable ID. These individuals are able to verify their identity via telephone through our National Transportation Vetting Center (NTVC).

That’s almost three times the average daily number of airline travelers without ID disclosed in the most recent of the TSA’s belated and still-incomplete responses to our Freedom of Information Act (FOIA) requests for records of travelers without ID.

2. You will still be able to fly without ID, even after the TSA “implements” and “enforces” the REAL-ID Act.

In their most recent notice of postponement of their REAL-ID threats, the TSA and the Department of Homeland Security (DHS) have said that they plan to fully implement and enforce the REAL-ID Act, with respect to airline travel, beginning October 1, 2021.

The TSA and DHS have repeatedly claimed that after that date, all air travelers will “need” to show ID that the DHS deems compliant with the REAL-ID Act in order to fly. And the TSA has previously indicated — in 2016 and again in May of 2020 —  that it intended to modify its current ID verification procedures to (illegally) deny passage through TSA checkpoints to would-be travelers who don’t present REAL-ID Act compliant ID cards.

But the TSA is now soliciting information preparatory to soliciting bids for a contract to provide outsourced “identity verification” services for air travelers without ID.

The TSA wouldn’t be preparing to solicit bids for a system to deal with air travelers without ID if the TSA planned, in a little more than a year, to stop allowing those people to fly at all.

And the TSA says that the contractor’s ID verification system for flyers without ID must “be able to process thousands of transactions per hour per day [sic] distributed across the TSA enterprise of airports.”  Whether the TSA means “thousands per hour” or “thousands per day”, that’s several times more than the current number of travelers without acceptable ID.

The only plausible explanation for the expected many-fold increase in the number of travelers without acceptable ID is that the TSA’s implementation of the REAL-ACT will result in many more air travelers’ ID’s being deemed unacceptable, and that the outsourced system is the one the TSA plans to use for travelers without REAL-ID compliant ID.

The TSA is looking for a new system for dealing with travelers without ID only because it has been forced to abandon its original plan to prevent all such people from flying.

The most important takeaway from the TSA’s latest notice is that the TSA is (still) lying about what REAL-ID Act enforcement and implementation will mean. You will not need a compliant ID to fly. The procedures may change, but you will still be able to fly without ID.

This is a major victory for our legal objections and for the potential of popular resistance.

The TSA has implicitly acknowledged that — either because it lacks legal authority to prevent everyone without “acceptable” or REAL-ID Act compliant ID from flying, or because doing so would cause riots at airports or other forms of popular resistance, or both — it  won’t be able to stop travelers without ID or without compliant ID from flying.

The bad news is the nature of the TSA’s contemplated new procedures for flyers without ID (or without “acceptable” ID).

Currently, the TSA leaves the final decision on whether or not to allow airline passengers without ID to pass through TSA or contractor-operated checkpoints to the discretion of the Federal Security Director (FSD) or their designee on duty at the individual airport.

That decision can be based on what the FSD thinks of the traveler’s looks, the nature of any “unacceptable” ID they present, whether they are willing to complete and sign the illegal TSA Form 415, and their responses to questions relayed via the TSA’s Identity Verification Call Center (IVCC) from the TSA National Transportation Vetting Center (NTVC) based on information in records about the traveler held by the commercial data broker Accurint.

The new process apparently being considered by the TSA would outsource the questioning of travelers without ID or with unacceptable ID to a private for-profit contractor, with that questioning to be administered through a smartphone app. The questions would be based on some aggregation of government and commercial data, and the answers would be assessed according to some secret algorithm to generate a binary pass or fail result.

An identity thief (or ‘bot) with access to the commercial database used as the basis for “pass/fail” determinations would be better able to answer questions about the information in that database than would a real person who is unprepared for this questioning and who has no way to know (or to correct) what misinformation is contained in the database.

A traveler who shows up at a TSA checkpoint would, it appears, be told they have to install the mobile app, pay a fee through the app (which presumably would require a credit or debit card or bank account),  complete the in-app questioning, and show a “pass” result from the app to the TSA staff or contractors in order to “complete screening” and proceed through the checkpoint.

  • No cellphone? No fly. (We’ve seen this already in Hawaii.)
  • Your cellphone isn’t a smartphone? No fly.
  • Your smartphone has a different OS that can’t run the contractor’s app? No fly.
  • No charge in your cellphone battery? No fly.
  • No signal in the airport? No fly.
  • No credit or debit card? No fly.
  • Don’t know what misinformation is in data brokers’ records about you? No fly.
  • Your record fits a “fail” profile in the contractor’s secret algorithms? No fly.

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Jul 03 2020

Two courts deny injunctions against state restrictions on interstate travel

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.

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Jun 30 2020

Freedom to travel across state lines

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.

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