Interstate Travel, Interstate Virus


Ahead of the July 4 weekend, Chicago and Pennsylvania announced new travel quarantine measures for arrivals from 15 states, joining New York’s recent order aimed at travelers from states where out-of-control spread of the the coronavirus threatens other parts of the nation. NPR aired a thought-provoking segment just before the holiday period began, leading with “If you’re traveling this holiday weekend or if you have guests coming your way, there’s a good chance you live in a state affected by a mandatory 14-day travel quarantine.”

In a limited way, these states are trying to replicate how the federal government has attempted to keep the virus out of the nation. The United States first banned travelers from China, then Europe, and now Brazil on a still-growing list. The Mexican and Canadian borders are closed, except for returning US citizens, nationals, and most green-card holders. (The favor has been returned by other nations against travelers from the US, since we are now a leading exporter of COVID-19).

But this U.S. strategy has always been a leaky sieve, as thousands upon thousands of US travelers have returned to the US from abroad at the same time non-US nationals were banned. Incoming international travelers are temperature screened and complete a questionnaire before embarking, and perhaps temp-screened on arrival at a US airport. Then what happens? How do we keep track of returning international travelers who were perhaps asymptomatic or go on to develop COVID-19 after they return? The short answer is that we don’t.

Compare this: International carriers screen for temperature, require a symptom questionnaire, and must keep lists of passengers for later contact tracing. For US domestic travel–[cricket sounds]. No temperature screening. No face mask requirements from FAA, leaving airlines to enforce any face-mask policy on their own. The largest airport in the US–Atlanta’s Hartsfield-Jackson International Airport–can’t even mandate that face masks be worn in the terminals. This is because the Governor of Georgia will not permit them to do so. I digress a bit here, but hello, if passing through a connecting airport isn’t interstate travel, what is? The FAA says it is up to HHS, or CDC, or someone. (More crickets.) For now, in Atlanta, it is up to the Georgia Governor. The Governor of Hawaii views this matter quite differently. The lack of a comprehensive plan for the US aviation system hampers the virus control efforts many state and local governments have imposed, at great cost to their residents.

*Update: On July 8, the Mayor of Atlanta issued an executive order requiring face masks be worn inside the terminals at Hartsfield-Jackson. The Governor of Georgia immediately announced the order is “unenforceable.” A few days later, the Governor declared it illegal, prohibiting any local government in Georgia from requiring face masks.

Enter the CDC and its authority to quarantine. The first plane-load of evacuees from Wuhan were ordered into a mandatory two-week quarantine at a U.S. military base. For a while, federal quarantine orders also applied to arriving cruise-ship passengers. But the CDC has given up tracking the thousands of potential virus-spreaders who may have picked up the coronavirus abroad before returning to the US. Arriving international travelers are advised on CDC’s website: “There is widespread, ongoing transmission of novel coronavirus worldwide. If you have traveled internationally in the past 14 days, stay home and monitor your health.”

But on a different section of the CDC’s website, we also learn this: “It is possible for federal, state, local, and tribal health authorities to have and use all at the same time separate but coexisting legal quarantine power in certain events. In the event of a conflict, federal law is supreme.” So, it might be that a state’s governor uncomfortable with the “voluntary” nature of this advice prefers to transform the 14-day stay-home advisory into a mandatory one–on the same terms that New York, Hawaii, and now other states would like to do for travelers from coronavirus hot spots within the U.S.

Coming soon, my analysis of how strange this all is, given that CDC and HHS are specifically tasked with preventing the interstate spread of contagious disease when it threatens to cross state lines. This authority comes from the very same Public Health Services Act HHS invoked to quarantine the Wuhan evacuees. For now, I pose the following questions:

  • If restricting travel and quarantining those you let in works for international boundaries, what is the logic in preventing states from attempting the same thing, if the federal government won’t? Especially if a state’s Governor can establish reliable criteria, adequate justification, and a limited time frame for singling out a given region of the US. During the 2014 Ebola outbreak, several state governors believed CDC’s international arrivals quarantine policy to be inadequate, so they enforced stricter ones.
  • Hawaii has the longest experience with a two-week mandatory quarantine of arrivals by air, and arguably the best success story in showing it works. Yet the Department of Justice offered a “statement of interest” in litigation against the quarantine there, arguing that Hawaii’s actions violate the right to interstate travel under the Privileges and Immunities Clause. Yet DOJ didn’t seem concerned about the same 14-day quarantines when Texas and Florida implemented them in March? (Which rather coincidentally, both states withdrew before DOJ intervened in the Hawaii case.) And a federal judge was not happy about DOJ’s intervention for an entirely different set of reasons.
  • Interstate quarantine authority is lodged in HHS and the CDC, by Congress. The federal government has had the ability to make rules for interstate quarantine since at least the 1890 Epidemic Diseases Act, when yellow fever outbreaks in the south caused states and cities to prevent travelers from entering. There is no indication that the views of HHS, CDC, or the Surgeon General played any role in the DOJ’s opposition to Hawaii’s quarantine policy. Were they consulted? The brief does not cite the federal statutory authority that governs here (including a preemption clause in favor of state quarantines like Hawaii’s). But even worse, DOJ does not cite U.S. Supreme Court precedent indicating that unless the federal government acts to override a state’s protective, geographic-based quarantine, that state law is valid. (Perplexed expression on face.)

No state could close its borders entirely, for example with a roadblock where I-85 enters Florida from Georgia. In the coming days I will write about why and under what circumstances these state-imposed quarantines are legal and constitutional, absent action by HHS under the Public Health Services Act. As with any emergency measure for COVID-19, there are, of course, civil liberties trade-offs and complexities. Hawaii has amended its quarantine order beginning August 1 to allow arriving travelers to show or obtain a negative COVID-19 test to avoid quarantine entirely. As scientific understanding and testing resources become more widely available and reliable, it will be possible to determine more narrowly whether an individual can be reasonably believed to have been exposed to the coronavirus and thus pose a potential threat.

But in the meantime, US residents returning from a trip abroad, even from a country that is a COVID-19 nightmare, are more free to travel the US without any kind of quarantine than are residents of some states. The CDC could do a lot more to help clarify this situation. Is it really the case that New York or Pennsylvania is less concerned about a traveler returning from a trip to Brazil than one coming from Arkansas?

As I wrote in a 2018 article, “Do State Lines Make Public Health Emergencies Worse?”:

"The federal government is not better at quarantine policy than states simply because it is the federal government (although it directs the superior resources of the CDC). The question instead is whether uniform national policy might in some instances be preferable to a patchwork of state quarantines."

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