No New Yorkers May Enter: May States Ban Residents from Other States From Entering to Protect Their People?

            

            Viruses do not stop at borders.  But can people infected with viruses be stopped at borders?  Could Pennsylvania stop a New Yorker from entering the state  whether suspected or not of being infected to protect its people? Already some US states are trying to prevent residents from other states from entering as they seek to fight the coronavirus epidemic.  This problem of cross-border infection will only intensify as some states begin to open up their economies or end their shelter-in-place orders over the next few weeks.  Allowing infected or even healthy people to travel interstate could jeopardize  public health measures to confine the coronavirus.  Do states have the authority to limit or ban individuals from entering their state to fight the pandemic?  Current constitutional law says no.

            States have broad authority over public health measures.  What is called their police power allows them to impose  quarantines over persons and livestock within their borders to prevent the spread of a virus.  Many states have authority to limit importation from other states' vegetation and animals that could bring with them parasites or disease.

            Yet this police power is not unlimited, especially when it comes to interstate commerce.  The US Constitution gives broad authority to Congress to regulate interstate commerce, preventing states from interfering with it or discriminating against  other states in an effort to protect their own businesses.  Yet in some cases the Supreme Court has allowed for some interference with  interstate commerce if the purpose of the regulation is non-discriminatory and it does not impose a severe burden.  Would limiting or banning residents from other states to limit the spread of the coronavirus qualify as an exception?  The answer is no for two reasons.

            One, the general police power exceptions are limited to goods, services, or  the instrumentalities of commerce.  By that, states may be able to restrict the flow of animals, produce, vegetation, and other goods into their state, but the rules are different when it comes to people.

            Unlike animals, food products, and other goods and services, people have constitutional rights.  Specifically, they have a constitutional right to interstate travel.  In the 1930s when the Depression kicked in and the farm crisis across the central plains grew, many farmers packed up and sought to move to places such as California.  John Steinbeck’s classic The Grapes of Wrath tells the story of Joad family moving west.  In 1937 California passed what was called  an “Anti-Okie” law making it illegal to bring into the  state "any indigent person who is not a resident of the State, knowing him to be an indigent person".  In Edwards v. People of State of California, 314 U.S. 160 (1941), the  Supreme Court ruled that this law violated the Commerce Clause.

            In the 1960s as various states enacted welfare or other public assistance measures, some feared that the poor would migrate to their state for the benefits.  In Shapiro v. Thompson, 394 U.S. 618, (1968), the Supreme Court ruled that such laws violated a  fundamental right to interstate travel.  After Congress had enacted welfare reforms given states more control over benefits, California and other states adopted laws allowing them to pay  lesser benefits  to recent immigrants from other states compared to residents for a certain period of time.  The Supreme Court Sáenz v. Roe, 526 U.S. 489 (1999), struck down these durational residency requirements as a violation of the Privileges or Immunities clause of the US Constitution.

            While in some situations the Court has upheld laws that treat residents and non-residents differently in cases involving college tuition at public schools or in matters of child custody, generally the Court has been firm in ruling that actions that involve a state discriminating against residents of another state are unconstitutional.

            There may be additional clause of the Constitution that prevent  these border bans.  The Due Process clause of the Fourteenth Amendment may make random or arbitrary stops at state borders illegal. There is also the Equal Protection clause of the Fourteenth Amendment which is a tool used to address discrimination.  Unfortunately, and no doubt many of the individuals who will get stopped at state borders will be people of color.  There is also the privileges and immunities clause of the Fourth Amendment to the Constitution too.  The point is that there are many constitutional clauses banning this type of state activity.

            Perhaps the coronavirus and  the needs of  abating a pandemic  might be treated differently by the courts, seeing its regulation as a neutral protection of public health within state regulation.   After all, a pandemic virus is different from indigency or welfare.  It would take  an extraordinary argument to show that banning interstate travel is the only way to address the virus and current case law does not support that measure.