Constitutional Law, Politics, Supreme Court

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 v. State 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. Yorkies need to eat. They don’t grow or manufacture the food they eat. I have a good delivery truck and a driver that delivers their. But. As some have stated on other issues: Never Again. Starve you dumb cuomo chumps.

  2. Here is my solution to the problem of entering NY from another state…just say you are coming from El Salvador via Florida and you will be welcomed, you will receive state aid, a drivers license and maybe even free college.

    Cuomo wants an open border from Central America and a closed border from the mid-west?????

    1. The nice young Progressives over at the Atlantic could learn a thing or two from Glenn Greenwald.

  4. How did the American Founders determine the need for, that it was past time for, a revolution; for action?

  5. JT, Why are you censoring information which is truthful and that other people have the right to know?

    1. You trolls are acting like youre going to lose the election again. Fancy that.

      https://www.huffpost.com/entry/hillary-clinton-leading-polls_n_58112308e4b064e1b4b05ce5

      The Polls — All Of Them — Show Hillary Clinton Leading Which means Donald Trump is losing.

      Democratic presidential nominee Hillary Clinton is either slightly ahead or way ahead of Republican Donald Trump with just 13 days until Election Day, according to new polls released Wednesday. An AP-GFK poll shows Clinton leading by an astonishing 14 points, 51 percent to Trump’s 37 percent, in a four-way race. In a two-way heat, Clinton’s lead narrows to 13 points.
      A new Fox News poll finds Clinton ahead by a much smaller margin ― just 3 points ahead in a four-way race, 44 percent to 41 percent. She also leads by 3 points head to head with Trump

      Other recent polls show Clinton with a lead ranging from 2 points to 12 points. It’s best not to freak out just yet over which of Wednesday’s polls are right. Instead, consider the aggregate of recent polls for a more sober look at the race. According to the HuffPost Pollster aggregate, Clinton is leading by about 7 points in the four-way race, 46.6 percent to 39 percent. 
      In the head-to-head race with Trump, Clinton leads by 6 points, 48 percent to 42 percent.

      The HuffPost Pollster presidential election forecast gives Clinton a 97.5 chance of winning.

      Editor’s note: Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims — 1.6 billion members of an entire religion — from entering the U.S.

  6. So….can someone explain to me how King Cuomo plans to enforce this bit of foolishness?

    I decide for some unfathomable reason to drive to New York…..or thru New York….how does he know I am even in his Kingdom?

    If I do not do as he says….and then depart without doing anything. he requires…..how will he know?

    Folks….think about Truck Drivers…..how do they comply with these stupid assed requirements?

    Perhaps….a Trucker’s Strike would be the quickest way to see the King ridden out of the state on a rail while covered in tar and feathers would be just that.

    Park ALL of the trucks at the State Line and wait him out.

    After all….the real risk is not folks coming into New York…..but rather those that are departing New York.

    1. Last I heard yesterday there is a 2 1/2 to 3 month wait to get a moving company to come in & move the belongs of people Leaving New York!!!

      What the hell were they doing anyway living in one of those Commie/Fascist Type Crapholes in the 1st place.

      The biggest thing I’m concerned with is some of those leaving those hell holes are moving to Tulsa area trying to find the old Normal USA people, I hope they don’t bring the Commie/Fascist crap here.

  7. Yesterday or the day before Just Facts exposed Cuomo and it turns out by not following what everyone from President to Medical Experts recommended sent a ton of his elderly constitutuents to a death camp environment. Now this neo jackbooter is saying don’t take the medicine.

  8. “…OR TO THE PEOPLE.”

    The powers not delegated or prohibited are reserved to the States, “…or to the people.”

    The government is understood to be “…of the people, by the people, for the people.”

    The 10th Amendment literally allows the people to make their own decisions in matters such as disease and whenever possible, proper and reasonable.

    Certainly people are free to obtain healthcare and to quarantine themselves, and they have as colds and the flu have been spread among people for millennia.

    As a dictator and tyrant, Cuomo presumes powers which are clearly not his, but the people’s.

    In the event of conducting an election or addressing rebellion or war, for example, the powers would be reasonably and properly reserved to the State.
    ______________________________________________________________________________________________________________________

    10th Amendment

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  9. Emperor Cuomo is the reason we no longer live in NYS. He told us to leave and we were only too happy to oblige!

  10. I am surprised that JT does not mention or analyze the several month policy this replaces —14 day quarantine for travelers to NY from states with high positivity rates.

  12. Covid can incubate for up to 14 days. It makes no sense to require a test after 3 days. None of this makes sense from a constitutional standpoint, but it doesn’t even hold water from an epidemiology perspective.

    My relative had to quarantine at home for 14 days upon her return to Canada.

    1. Karen, here in Hollywood, personnel in TV and Film productions test every 3 days. Testing has become a major part of the business.

  13. Interestingly, Andrew Cuomo has a long history of supporting illegal immigration, and sanctuary cities. As part of NY’s Green Light Law, the state issued drivers licenses to illegal immigrants (as in CA), but prevents any motor vehicle agency from sharing information with the Department of Homeland Security. One wouldn’t think it possible to happen at the epicenter of 9/11.

    DHS responded, and declared it would no longer issue or renew “trusted traveler certificates” for any New Yorkers. Funny, how that works.

    What’s the matter, Cuomo? Don’t believe in open borders during Covid?

  14. Turley is promoting anti-safety issues like the Dear Leader, funny but it does not surprise anymore. Of course Americans can’t travel anywhere in the world because of Trump policies.

    1. Fishwings:

      Turley is pointing out constitutional and legal difficulties with mandatory steps by Cuomo, as well as the fact that it makes no sense due to the length of incubation.

      1. Karen, given the flawless performance of Covid Don over the last 7 months, poor Turley is left searching for obscure transgressions by CNN personalities and Democratic office holders or he wouldn’t have a column. I know he’s watching our President and Fox News like a hawk, just waiting to pounce if they screw up. After all we are constantly reassured he is a Democrat, even if he only appears as a GOP witness on everything from impeaching Clinton to impeaching Covid Don – wait, did he say the same thing?

        In any case, I’m sure it’s only a matter of time until we see those columns on obscure legal questions like the impact of stealing supreme court seats – and a majority – from duly elected presidents, the efficacy of a President asking his AG to arrest the opposing major party candidate for President, and a President campaigning to both discredit our election system while offering no help to a Post Office he screwed up just before an election during a pandemic, or packing the SC just before an election in case he needs with keeping the majority of Americans from deciding his fate adversely. That’s what the GOP has done with the court, now a fully owned subsidiary of the minority of voters who also elect them.

        1. Your point, Joe Friday? He explores both sides without jumping into the Democratic echo chamber? Oh, I get that. Cuomo’s legal difficulties (not to mention extreme financial difficulties for a state he seems bent on destroying, and nursing home patients he condemned to death) have only just begun. Thank you Jon Turley.

          1. Betsy: do you know how far Turley has to reach and how many lies, un-American things your fat hero does and how many lies that Turley has to overlook in order to find ways to criticize Democrats and Joe Biden? Turley doesn’t “explore both sides”: he is a Trump syncophant. He has sold his credibility and credentials for this election cheater. It occurred to me the other day, when someone who thinks she is religious was praising Trump: he is the walking embodiment of the seven deadly sins: pride, covetness, lust, gluttony, anger, envy and sloth, but somehow, you Trumpsters are blind to all of this.

            1. Turley is a pro and you are a nameless internet babbler

              Natch the stench of your hate wafts from your posts like the stink from an Alabama university football game portapotty on a hot day after a thousand people have used it

              1. You demean yourself Kurtz and call into questions not only your ability to present an argument, but your skills in witty and cutting sarcasm.

                Portapotty? Really?

                1. If you’ve been to a big college football game on a hot fall day and smelled the stench, of a thousand people urinating, defecating, and vomiting into the same hole, then, you know the stench of her words

            2. Natacha says – “Trump: he is the walking embodiment of the seven deadly sins: pride, covetness, lust, gluttony, anger, envy and sloth, but somehow, you Trumpsters are blind to all of this.”

              Correct, we are blind to what you think you see. Pride, yes, but shouldn’t we all have proud in ourselves and our country? Sloth? Are you joking? The man never stops working on behalf of this great country! You must be thinking of Sleepy Joe Biden on that one, oh and anger is a big one for Joe. Have you heard Joe angrily shouting at empty cars? Whoa, why so angry Joe?

              Perhaps it is YOU who is blind to Trump’s Seven Virtues?

              Faith is belief in the right things. (Trump has faith in the goodness of America and all her citizens)
              Hope is taking a positive future view, that good will prevail. (Biden tells us “darkness is coming”)
              Charity is concern for, and active helping of, others. (Trump is working this hard for free and donating his salary, whereas Joe sold out his own country)
              Fortitude is never giving up.(My god we all know Trump has fortitude and courage)
              Justice is being fair and equitable with others. (Law and Order!)
              Prudence is care of and moderation with money. (Trump is managing our money and trade deals like a businessman!)
              Temperance is moderation of needed things and abstinence from things which are not needed. (Have you seen all the hate Trump is up against every day, yet he actually looks like he is having fun, whereas Joe Biden comes across as bitter, old, angry, and shouting hate-filled lies at cars in parking lots!)

              Yes, Natacha, the hundreds of thousands of Trump supporters who wait hours in line to attend one of Trump’s rallies see the virtues of Trump that you do not and they will crawl over broken glass to vote for this great man. Joe Biden? Not so much zeal for whatever it is he offers is there — besides NOT being Trump.

              1. s/b: Not so much zeal for whatever it is he offers, is there? — besides NOT being Trump.

                TRUMP 2020 VOTE VOTE VOTE!!! Another VICTORY!

                1. ‘If Trump wins, hindsight will not be kind to Democrats who used all of their combined experience, skill, and brilliance to select a stumbling dementia patient to run against a force of nature.’ @scottadamssays

        2. You’re a ChiCom troll, Joe.

          https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/about-us-cases-deaths.html

          “Confirmed & Probable Counts

          As of April 14, 2020, CDC case counts and death counts include both confirmed and probable cases and deaths.

          A confirmed case or death is defined by meeting confirmatory laboratory evidence for COVID-19.

          A probable case or death is defined by one of the following:

          Meeting clinical criteria AND epidemiologic evidence with no confirmatory laboratory testing performed for COVID-19

          Meeting presumptive laboratory evidence AND either clinical criteria OR epidemiologic evidence

          Meeting vital records criteria with no confirmatory laboratory testing performed for COVID19”

  15. (music)
    Yorkie!
    I’m a dorkey!
    Whaaaat kind of people hate New Yorkies?
    Smart kids, little kids…
    Kids who climb on rocks.
    Old farts .. dizzentarts..
    Even pigs with chicken pox…
    Hate Yorkies.
    They hate Yorkies.
    The nerds.. kids.. like…
    To bite!

  16. Pingback: The Empire State: Do Cuomo's Covid-19 Guidelines Take The State Moniker Literally? | | Dawson County Journal

  17. When the Yorkies land at the airport in Saint Louis then send em over to East St. Louis.

  20. Once again, we see the arrogance of the Dems.

    It will take court action (and money) to correct.

    No wonder they fought ACB.

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