States’ quarantine orders don’t pass smell test The Mesa Tribune | The Hometown Newspaper for the city of Mesa, AZ

States’ quarantine orders don’t pass smell test

States’ quarantine orders don’t pass smell test

By Alexander J. Lindvall
Tribune Guest Writer

Over the last few months, several states—such as Alaska, Florida, Hawaii, and Texas—have been enforcing mandatory, two-week quarantines for those entering from out-of-state. 

Hawaii, for example, has been enforcing a “mandatory 14-day quarantine” for all out-of-state entrants. 

All those who arrive in Hawaii by plane or boat are required to “initial and sign” the governor’s self-quarantine order, “confirming they are aware of the 14-day quarantine and acknowledging they understand violating the order is a criminal offense.”

Inbound travelers are further required to give the government a “unique government ID number,” their phone number, and their “designated quarantine location,” so that they can be properly tracked.

For two weeks upon arrival, travelers to Hawaii cannot “visit any public spaces,” such as meeting rooms or restaurants. They are not allowed visitors.

And they “can only leave [their] designated quarantine location for medical emergencies or to seek medical care.” Those who violate this mandatory, government-imposed quarantine are “subject to up to a $5,000 fine and/or a year imprisonment.”    

Orders like this are contrary to several well-established constitutional principles.

For starters, Americans have a fundamental right to interstate travel.

Since the early 1800s, relying on several constitutional provisions, the Supreme Court has consistently declared that citizens have a “right of free ingress into other States, and egress from them.” 

In its most recent “right to travel” case from 1999, the Court noted that the Constitution “protects the right of a citizen of one State to enter and to leave another state [and] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State.” 

If the government wants to interfere with a fundamental right, it typically must have a “compelling” reason to do so, and its law must be “narrowly tailored” to ensure that the right is minimally infringed upon. 

These orders clearly do not meet this standard. 

Hawaii’s order, for example, applies to “all individuals…arriving from out of state,” regardless of their symptoms or travel history.  There is nothing “narrowly tailored” about this. 

If the government wants to interfere with fundamental rights, it needs to draft careful, well-thought-out laws. Blanket restrictions like this don’t cut it. 

By declaring that out-of-state visitors will be subject to a mandatory, two-week sentence of house arrest, these states are clearly inhibiting the fundamental right to interstate travel.            

Additionally, the Fourth Amendment prevents the government from unreasonably seizing people without adequate suspicion. For example, a police officer must have at least “reasonable suspicion” of criminal activity before he can momentarily stop you on the street; the officer must have “probable cause” that you have committed a crime before he can arrest you; and the government typically must initiate formal criminal proceedings before an impartial judge before it can confine you for a prolonged period of time.

These government-enforced quarantine orders do not meet any of these Fourth Amendment standards. 

As of June 29,  there were 74,533  confirmed coronavirus cases in Arizona – a state with a relatively bad coronavirus problem.

  Given Arizona’s population of 7.3 million people, that means only 0.7 percent of Arizonans had been confirmed to have the virus.  And the odds of an asymptomatic, Hawaii-bound traveler having the virus are surely much lower. 

These odds don’t even sniff what is needed to establish reasonable suspicion or probable cause. 

The government needs more than a “hunch” before it can restrain your movement – it needs a particularized and objective basis for suspecting that you might harm others. The government clearly does not have that here.      

If a person were symptomatic or had recently been to a coronavirus hotspot, then of course the government’s efforts to temporarily restrict their movement would be more justifiable. 

But to blanketly impose house arrest on all travelers, regardless of the likelihood that they have the virus, is crazy.

The Constitution demands more from lawmakers.    

The onus is on the government.  If it wants to interfere with basic human rights – like the right to move around freely and not be confined to a hotel room—it needs to show that it is combatting a very serious problem, and it must draft targeted, well-thought-out laws that restrict fundamental rights in the narrowest way possible.

In other words, the government needs to have a good reason to believe that you are likely to harm others before it can lock you in a room.  These near-exception-free quarantine orders do not pass the constitutional smell test.   

Alexander J. Lindvall is Mesa’s assistant city attorney.

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