This morning, I filed suit against New York Governor Andrew M. Cuomo in regards to the “quarantine” he and two neighboring governors announced yesterday. This particular quarantine requires anyone incoming to the state who has been to states that the governors find have unacceptably high rates of coronavirus to self-quarantine for 14 days. Failure to self-quarantine results in forcible quarantine and a massive bill.
New York, perhaps because of the population density of New York City and its reliance on public transportation, was hit almost first and by far the hardest of the states by the coronavirus pandemic. Since April 7th, however, the state has seen a steady and consistent decline from 799 deaths in a day to 27 a couple days ago. That said, there are still about 600 new infections confirmed in the state daily, and the best numbers I can crunch suggest that tens of thousands of New Yorkers currently have an active coronavirus infection, whether diagnosed or not.
In this context, it is shocking to me that anyone would propose a quarantine to keep the virus out of New York. If anything, there are probably places that should be quarantining us (and, many countries are indeed not accepting American tourists right now). The cat is out of the bag, and coronavirus, although substantially reduced from the peak, can be found in every village, town, and city in the state. An infected traveler from out-of-state simply cannot affect the statistics when we have tens of thousands of people in the state already who are currently shedding the virus.
This reeks of a political stunt. Whether it’s retribution for other states imposing travel restrictions on New Yorkers, or a middle finger to Trump for encouraging states to re-open, or an attempt to appear “tough on corona” to voters, I don’t know and don’t care. What is clear is that this step cannot deliver any public health benefit, but will certainly cause substantial interference with our constitutional right to travel.
“We have a constitutional right to travel?” Indeed. Like the right to an abortion or to get married, the right to travel appears in the U.S. Constitution not in explicit words but in the due process clause of the Fifth and Fourteenth Amendments. Due process involves not only the right to a trial and so forth (“procedural due process”) but also a right to be free from infringements on our liberty absent a good reason (“substantive due process”). The standard for whether a public health concern is a good enough reason comes from over 100 years ago when a state made smallpox vaccination mandatory and ended up on the receiving end of a lawsuit. That case, Jacobson v. Massachusetts, 197 U.S. 11
(1905), required a “real or substantial relation” between the health concern and the government’s restriction. “Real or substantial” is more than just rational, or plausible, but rather courts have required the government to actually explain how A leads to B, and often to consider less invasive means. (Speaking of, there are obvious alternatives: for example, allowing people to escape quarantine by getting tested, or simply checking body temperature of people flying in.)
My lawsuit, filed in the United States District Court for the Southern District of New York, comes along with a motion for an emergency temporary restraining order. I shall leave you with the conclusion:
The Governor is free to come before the Court at any time with evidence to show that the challenged order is actually necessary to protect the public health. After all, the state should already be in possession of such evidence before issuing an order as drastic as the one challenged. If and when such evidence is provided, the Court may immediately lift the TRO. Until that time, the government should be ordered to “PAUSE” itself.
Is this motion likely to be successful? Well, I fight the hard cases, and this is a fight worth fighting. We’ll leave it to the Court to determine whether the fight wins the day.
Case is Jonathan Corbett v. Andrew M. Cuomo, 20-CV-4864 (S.D.N.Y.).
Corbett v. Cuomo – Complaint (.pdf)
Corbett v. Cuomo – Motion for Emergency Temporary Restraining Order (.pdf)
I agree. People are free to travel from State to State. At this point, I don’t see the need for this quarantine policy anymore. The virus is here and it will be here until it runs its course. Maybe a few hundred years ago when populations were smaller, this may have worked. Cities with high density populations just can not stop this sort of thing. If nothing else, the so called essential services will continue to spread the virus.
I also agree that if nothing else, if this is ruled legal, other areas should stop people from the large cities like New York from going elsewhere. It seems to me that New York city is a huge problem. As you point out and rightly so, it has a seriously high infection rate. Given transportation, people living in large apartments, likely with common ventilation, it will be almost impossible to quarantine enough people.
I get that politicians are trying to protect people, save lives and such but, what they are doing is only prolonging the problem. Short of a vaccine to prevent the catching of this, one way or another it will run its course. History shows this. Viruses continue to spread until then. I say this as a person who has a immune system problem. I’m one of those who takes precautions but I’m still doing what I need to despite the virus. I treat it like any other flu season where there is a bad one going around.
I hope your case prevails!
I mean that I hope you prevail.
“That said, there are still about 600 new infections confirmed in the state daily, and the best numbers I can crunch suggest that tens of thousands of New Yorkers currently have an active coronavirus infection, whether diagnosed or not.”
According to this, there are just shy of three hundred thousand active COVID-19 cases, the number one United State, and just shy of a quarter of the US total:
I’ve been reading you for years, just a random guy off the internet, but seriously wish you all the best ! Good luck and I hope you prevail !
When will there be a decision in this matter?
Are there any updates
Rhode Island ends specific restrictions on New Yorkers — by making them national
3.30.20 – Joint Letter to Governor Cuomo from Senator Fred Akshar, Broome County Executive Jason Garnar, Tioga County Legislative Chairwoman Marte Sauerbrey, Broome County Legislative Chair Dan Reynolds and Binghamton Mayor Rich David | NY State Senate
Greene County Press Release (COVID-19) – March 20th, 2020_Updated March 23rd – Greene Government
Supervisor Calls For Travel Ban To East End As Coronavirus Spikes | North Fork, NY Patch
Cuomo Says He Opposes New York City Travel Ban, Quarantine
NY Health Official Flouts White House Advice For Self-Isolation | Wantagh, NY Patch
You should check into the way the other states are reporting for example Arizona is labeling people positive without a positive test based off symptomology if that patient then goes and gets a test they are counted again so if you call your doctor in the state of Arizona and you have symptoms they will label you covered positive That’s a plus one for the statistics then if you go get a test and you come back positive that’s a plus two they are counting the amount of positives not people so if 600 people are positive based off symptomology and all 600 go get a test That’s 1,200 new cases this is absurd we are being lied to by our government and they are using it to restrict our freedoms
Leaving aside this quarantine order, which I agree is pointless by now since Covid is everywhere, re this clause:
“. . . for example, allowing people to escape quarantine by getting tested, or simply checking body temperature of people flying in)”
Taking people’s temperature with those forehead thermometers is worthless. Those things are notoriuosly inaccurate. They are, like the TSA, simply window-dressing.
I have come up with a new phrase: rights conflict management.
Many of the covid decisions are right(s) infringing. They are based on 3 conflicting groups: people vs old people, people vs first responders/long term care workers/front line workers and people vs injured requiring hospitalization/treatment people.
The last grouping is the covid takes up resources that prevents non-Covid hospitalizations or treatment from getting quality care.
It should be interesting if they use Drinking n’ Driving checkstop argument.