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)