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.