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Border battles – Some American states are curbing travel to fight the coronavirus | United States

More restrictions are likely to follow. So are lawsuits


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FEDERALISM, AMERICA’S multi-tier political system, is facing its sternest stress test since the Civil War. The federal government’s halting response to the spread of covid-19 has spurred states and cities to take on the virus with a scattershot list of closures and public advisories. But without a unified response to the intensifying pandemic, this patchwork of belated policies has helped turn America into the world’s coronavirus leader—with more than double the confirmed infections of Spain, its closest competitor.

There is a new wrinkle in America’s haphazard response to covid-19: states cracking down on visitors from other states. Rhode Island announced on March 27th that it would pursue people coming from New York and order them—on pain of a $500 fine and 90 days in prison—to quarantine for 14 days. The American Civil Liberties Union called the plan a “blunderbuss approach”. New York’s governor, Andrew Cuomo, also bridled, saying the move was “reactionary” and “clearly unconstitutional”. In response, Gina Raimondo, Rhode Island’s governor, widened the mandatory quarantine to include people entering the state from any point of origin.

Texas, Alaska and Hawaii have adopted mandatory quarantines, too—some aimed only at travellers from centres of infection such as New York, New Jersey and Connecticut, some at incomers from anywhere. On March 31st Andy Beshear, Kentucky’s governor, instructed residents not to leave the state or to expect to sit for 14 days in quarantine on their return. After resisting broad measures for weeks, on April 1st Florida’s governor, Ron DeSantis, issued a stay-at-home order for the entire state—with an ill-considered exception for places of worship. But well before taking that overdue step, he, too, imposed a 14-day isolation requirement on anyone arriving from New York’s tri-state area and set up checkpoints on the highways to nab drivers from New Orleans, another covid-19 hotspot.

States have broad authority to protect residents’ safety and health. According to Anthony Kreis, a professor at Chicago-Kent College of Law, restrictive public-health measures are on firm legal footing when they treat non-residents and residents equally. Civil libertarians may challenge these policies but it is “hard to fathom any muscular judicial intervention”, Mr Kreis writes, as long as states have a compelling reason to impose quarantines and—as in Rhode Island’s pivot—avoid discriminating against residents of particular states.

Yet this defence of crackdowns on interstate travel ironically entails measures that are sweeping rather than pinpointed. Stephen Vladeck, a law professor at the University of Texas, says America’s “woefully inadequate covid-19 testing regime” and the “insufficient data” it has supplied have led governments to “defend broader policies than if we had good data” on infection rates and patterns. With few facts to go on, states lack the tools to quarantine only sick or exposed individuals. They are left with only ham-fisted options for curtailing the import of new disease vectors.

If states ramp up their restrictions or target particular out-of-staters without good reason, legal jeopardy may await. The Supreme Court’s “dormant commerce clause” doctrine—an implied bar on states discriminating against others in interstate commerce—protects outsiders from ill-justified burdens. And the privileges and immunities clause in Article IV of the constitution requires states to treat out-of-staters within their borders just as kindly as they treat their own residents. Courts would balk if states moved to seal their borders or establish checkpoints to turn back residents of particular states.

But as the pandemic plays out, some states may try to test the limits of legality and turn to harsher manoeuvres. States neighbouring Arkansas, Iowa, Nebraska, North Dakota and South Dakota—which are weathering the virus without shelter-in-place orders—may grow skittish about cavalier policies across the border. Some states will ease closures sooner than prudence may dictate: Georgia’s governor, for example, re-opened beaches on April 3rd despite the state’s still-steep curve. Mr Vladeck warns that “we are on the precipice of a wave of litigation” over interstate restrictions as “more and more pressure points” arise.

Mr Kreis agrees. It is “inevitable”, he says, that more states will try to immunise themselves from imported infections as the number of hotspots rises, health systems are overwhelmed and public officials grow desperate. Confusion may follow as Americans attempt to navigate a complex network of travel rules developed by 50 largely independent fiefs struggling to tamp down a pandemic.

Places like Kansas City or St Louis—metropolitan areas that extend across state lines—could be especially tricky to govern with cross-cutting quarantine orders. Dozens of other cities straddle state lines, too. In Texarkana, the Texas-Arkansas border splits a highway. Inside Texas, the rules differ county by county, per Governor Greg Abbott’s laissez-faire stance on covid-19 containment.

This piecemeal, hyper-localised response—contrasted with centralised approaches in countries like China and South Korea—does not bode well for America’s bid to quell the outbreak. Nor does it bear out Justice Louis Brandeis’s romantic view of states as vital venues for American innovation. That vision, sketched in a 1932 Supreme Court decision, is hard to reconcile with the hotch-potch of measures and cross-border scapegoating marking the nation’s approach thus far. For Mr Vladeck, states today are less Brandeis’s “laboratories of democracy” than mutually suspicious Petri dishes of a deadly virus.

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Correction: The original version of this article misspelled Gina Raimondo’s name.

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