A Constitutional Framework for Enforcing Statewide Quarantine Orders: Banning Out-of-State Residents from In-Person Transactions

Abstract

As the coronavirus pandemic rages on, optimism for “flattening the curve” to reduce hospital overflow and contain the virus’s spread has given in to a far bleaker outlook for the fall flu season. The Memorial Day and Fourth of July spikes in nationwide case counts have hit all areas of the country; no community, urban, suburban, or rural, has remained untouched. But the patterns in spread in the Northeast differ significantly from the rest of the country. While the New York area has seen grim numbers at the beginning of the pandemic, the area has shifted to containment mode, and thanks to strict mask orders and widespread regional compliance with public health directives, the Northeast has so far managed to avoid further spread of the virus. The region’s low rate of transmission is in spite of widespread weekend travel during the aforementioned holidays and a series of national protests.The biggest threat to this progress is the influx of entrants to the area hoping to “escape” unfavorable pandemic conditions in their areas. The governors of those states, however, have made it clear that their options to contain out-of-state entrants are constitutionally limited, and the strict enforcement of quarantine orders can only go so far before constitutional challenges will arise.My Note proposes a creative solution for state governors to discourage out-of-state “escapees” from entering compliant states: a ban on out-of-state residents engaging in in-person transactions. I anticipate challenges brought about by the two most likely sources – the Privileges and Immunities and Commerce Clauses – and expound on why the lack of relevant case law and ambiguity in construction may help governors take interim measures to best protect their populations.