The Empire Strikes Back: Do Cuomo’s Covid-19 Guidelines Take The State Moniker Literally?

While the origin of the nickname has been hotly debated, many trace back New York’s moniker as “The Empire State” to a comment attributed to George Washington who observed that the state’s key geographic advantages smacked of the “Seat of an Empire.” After reading the new guidelines issued by Governor Andrew M. Cuomo for out-of-state travelers, one could easily conclude that he was taking the state nickname literally.  Outsiders are subject to restrictions akin to traveling to another country. The question is whether those limitations will withstand judicial review. It could prove a close question on a couple of specific conditions.

We have previously discussed how states are afforded considerable deference in combating a pandemic. However, a pandemic order is not an absolute license to dispense with the restrictions imposed by the United States Constitution, including right to travel, interstate commerce, and other constitutional protections.

The guidelines that require testing and quarantine for travelers from other states:

  • For travelers who were in another state for more than 24 hours:

    • Travelers must obtain a test within three days of departure from that state.
    • The traveler must, upon arrival in New York, quarantine for three days.
    • On day 4 of their quarantine, the traveler must obtain another COVID test. If both tests come back negative, the traveler may exit quarantine early upon receipt of the second negative diagnostic test.
  • For travelers who were in another state for less than 24 hours:

    • The traveler does not need a test prior to their departure from the other state, and does not need to quarantine upon arrival in New York State.

    • However, the traveler must fill out our traveler form upon entry into New York State, and take a COVID diagnostic test 4 days after their arrival in New York.

Those are some very significant limitations. The question is whether a court would find the limits rational given the exemptions, including “Travelers from states that are contiguous with New York will continue to be exempt from the travel advisory.” That is a huge population from states with rising Covid infections.  States like New Jersey and  Connecticut were added to the quarantine rules of states like Massachusetts. Moreover, there is the question of basis for distinguishing travelers based on the 24-hour condition or sufficiency of a three-day test when incubation could take longer. It can take up to 5 days for symptoms to develop for Covit-19. One study on false-negative rates post-exposure, found that “during the four days of infection prior to symptom onset, the probability of a false negative on the PCR test went from 100 percent on Day 1 to 67 percent on Day 4.” 

In Edwards v. People of State of California (1941), the Supreme Court rejected limits placed on people from Oklahoma as denying “the right of free movement” which is part of “a right of national citizenship.”

The Court has acknowledged that the right to travel is “evasive” and “variously assigned to the Privileges and Immunities Clause of Art. IV, to the Commerce Clause, and to the Privileges and Immunities Clause of the Fourteenth Amendment.” Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 902 (1986).  Yet, it has also noted that it “embraces . . .  the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”  Saenz v. Roe, 526 U.S. 489, 500 (1999). See also Supreme Court of New Hampshire v. Piper (finding that limitations of interstate travel could violate the Privileges and Immunities clause). Any discrimination against non-residents must be based on a substantial state interest (which seems clear) but the state could also be required to show a means that is least restrictive to achieve that purpose.   Even under a rational basis test, the exceptions could prove problematic.

If a court does not view these limitations as clearly warranted or scientifically based, there could be a successful challenge to aspects of the guidelines. In particular, it is not clear how effective these guidelines would be with such exceptions.  In 1902, in Compagnie Francaise De Navigation a Vapeur vState Board of Health, the Supreme Court upheld a quarantine on people traveling to New Orleans when that city was struggling with a lethal yellow fever outbreak. Notably, however, it applied to everyone from inside or outside Louisiana. The New York guidelines treats out-of-state travelers like they are from another country while offering favored status to allied jurisdictions along its borders.

Again, New York and other states start with considerable deference in dealing with a pandemic. Yet, it must also be able to establish a rational basis for not imposing these limits on millions of out-of-state travelers as well as a scientific basis for the testing requirements. Given the millions moving in and out of the state as exempted persons, these limits could be challenged as arbitrary or ineffectual or both.

53 thoughts on “The Empire Strikes Back: Do Cuomo’s Covid-19 Guidelines Take The State Moniker Literally?”

  1. None of this would be necessary but for the failures of the fat slob who dumped responsibility for handling this crisis in the laps of governors. Now, Turley appears to be saying there should be limits on the power of governors to try to control the spread of this dangerous virus. Canada, which has similar demographics to the US, learned about COVID at the same approximate time as the US, but the US has 2 1/2 times the number of cases as Canada, proving what a lack of national leadership can cause. Governors were given power by their citizens to act for the collective good in preventing the spread of contagious diseases. Regardless of whether you or a loved one dies, the long-term consequences of COVID are unknown, but could be bad because it appears to cause inflammation of blood vessels. Who knows whether the inflammation can cause future heart attacks or strokes? Who wants to be sick, with high fever, coughing, pain and discomfort if it can be avoided? Who wants to see a family member or friend be sick and go through suffering, if it is unnecessary?

    1. Yes, this virus may be a lot more insidious than peoples think. This administration has portrayed this virus is nothing to worry about and it’s going away. The virus doesn’t care what u think, it will continue to do what it does and with winter upon us it could be really bad. Half this nation has disregarded science! It’s a dark time in our history.

    2. Nat: “Canada, which has similar demographics to the US, learned about COVID at the same approximate time as the US, but the US has 2 1/2 times the number of cases as Canada, proving what a lack of national leadership can cause.”

      The only thing you’ve proven is that a little knowledge is a dangerous thing.

      “similar demographics”: On a crucial demographic factor — geography and population distribution — that statement is patently false. The two countries have about the same land size. Canada, though, has about 1/10 the U.S. population. The effect of that fact on virus spread should be obvious to anyone with two eyes.

      When making such comparisons, the basic rule is: compare apples to apples. In this case, it means to compare cities to cities.

      From the outset of the pandemic, Montreal (pop. about 1.8 million) has had a higher death rate than most American cities (and one of the highest in the world). (And “death rate” is the key issue, not total cases.) To date, that city (which, by the way, is in Canada) has had about 3,500 covid-19 deaths. By comparison, Houston (which, by the way, is in the U.S.) with a population of about 2.3 million (which, by the way, is more than 1.8 million) has had about 3,700 covid-19 deaths. Chicago (with a population of about 2.7 million, also larger than 1.8 million) has had about 3,000 covid-19 deaths.

      (Sorry for all the snarky asides. These poser experts are infuriating.)

  2. The dead giveaway that Cuomo is just playing politics:

    “For travelers who were in another state for more than 24 hours”

    WTF is that supposed to achieve?

    If a traveler is in Pennsylvania for 23 hours, there is no way that the traveler could be exposed to a virus?!

    It’s just in your face bullsh*t.

  3. Save these links & view this important health info as soon as you can.

    1st one: About 20 minutes of info:

    Masks: The Science with Dr. Lee Merritt


    Nov 1, 2020
    Most Banned Videos
    Most Banned Videos

    Dr. Lee Merritt discusses the science & the myths about masks.

    Dr Fauci really cooks his own azz in this video below, it is also a must watch. About 35 minutes of info:


    Nov 1, 2020
    The Alex Jones Show
    The Alex Jones Show

    Bacterial Pneumonia was the leading cause of death during the Spanish Flu, and Fauci is hiding the mask’s ability to cause pneumonia even though who co-authored studies on the exact same thing. You wonder why then he told us not to wear masks in the beginning.

  4. “The Covidian Cult”

    “Their initiation into the Covidian Cult began in January, when the medical authorities and corporate media turned on The Fear with projections of hundreds of millions of deaths and fake photos of people dropping dead in the streets. The psychological conditioning has continued for months. The global masses have been subjected to a constant stream of propaganda, manufactured hysteria, wild speculation, conflicting directives, exaggerations, lies, and tawdry theatrical effects. Lockdowns. Emergency field hospitals and morgues. The singing-dancing NHS staff. Death trucks. Overflowing ICUs. Dead Covid babies. Manipulated statistics. Goon squads. Masks. And all the rest of it.

    Eight months later, here we are. The Head of the Health Emergencies Program at the WHO has basically confirmed an IFR of 0.14%, approximately the same as the seasonal flu. And here are the latest survival rate estimates from the Center for Disease Control:

    Age 0-19 … 99.997%
    Age 20-49 … 99.98%
    Age 50-69 … 99.5%
    Age 70+ … 94.6%”

    It is amazing how few people have any critical thinking skills whatsoever. That condition is further exacerbated by social media and the completely indoctrinated fools who still look to MSM news organizations for information, and even worse, guidance.

    1. ‘I’m not going to shut down the country.

      I’m not going to shut down the economy.

      I’m going to shut down the virus.’

      This is what Joe Biden keeps on saying. But he already told us he would “shut it down” and he would “listen to the scientists.’ So how you gonna ‘shut down the virus, Joe? You gonna push a big red button in the Oval Office that says “Virus Kill Switch”? Wave a magic wand? Order everyone to wear a mask indefinitely?

      Stop lying Joe.

      1. I usually agree with you’re post but u are wrong here. Biden has said he would talk to local officials to temporarily shut down local hot spot if needed. He never said he would shut down the entire economy. He absolutely said it depends on the regions and the infection rate. As PT has pointed out, the government has the right to protect its citizens. If the Zika virus or the Ebola virus was as contagious as COVID, the government has the right to totally lock down. Obviously, taking certain precautions would make tremendous difference in controlling this nasty virus but there are too many anti government people that want the government to stay out of their lives. I always wear mask to no only protect myself but to protect others.

  5. If you are a logical person, non of the covid knee jerk over reactions make any sense. There is no logic, only control.

    1. They were still uncertain about some features of the illness. When the data from the Diamond Princess was complete, they had a pretty good idea that people under 50 were not at risk from this illness and that people between 50 and 60 were at risk if they faced one of a mess of co-morbidities correlated with excess weight. It was at that point that the name of the game should have been to isolate the elderly and heavy people in late middle age.

      Note, the CDC has a handy table on the number of COVID and non-COVID deaths in each age group. The ratio of one to the other is as follows:

      Under 25: 0.01
      25-34: 0.032
      35-44: 0.062
      45-54: 0.097
      55-64: 0.097
      65-74: 0.11
      75-84: 0.11
      85-: 0.106

      We’ve known for months the schools shouldn’t have been closed. What needed to happen was that their older employees needed to be put on telecommute or furloughed. Recall also that the median age of those who are parents of high school students is about 43.

      We’ve also had a fair idea since the end of June that the virus is very seldom transmitted in open air.

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