Current events have me wondering how far the feds could go legally and practically. (Wasn’t sure if this was better for here or QZ, but posting two new threads there felt weird, and this isn’t necessarily limited to the idea of quarantine.)
The Constitution explicitly gives Congress the power to ‘regulate interstate commerce’ and ‘promote the general welfare’, which would pretty clearly cover travel restrictions. It’s pretty clear that there was no historical opposition to dealing with epidemics, though such things were usually handled by states as far as I’m aware. I don’t think there’s any precedent that would stop congress from passing laws to block travel between the states, or from creating a new agency to enforce such roadblocks or empowering an existing one to do so. They would need to either get states to agree to enforce the laws or create their own law enforcement, as they can’t pass a law and compel states to enforce it.
Incidentally, states routinely restrict access to areas within the state to non-residents during a state of emergency, though it’s usually used in response to things like hurricanes or floods rather than a pandemic. There’s never been a serious challenge to these laws in general.
IANAL but I think any attempt to restrict travel between the states would be met with a legal challenge by some of those states based on states’ rights. You can imagine that a state like Florida that depends on tourism so strongly would have a problem with this, if the federal government overreaches what the state can demonstrate is reasonable and prudent. I would think regulation of interstate commerce could apply only to flights. The FAA has powers over this even outside of the interstate commerce clause; all air traffic was halted after 9/11. But me driving to Ohio is not interstate commerce.
It would be extraordinary for the feds to try to prevent private travel and there are not federal resources to enforce it. The feds could threaten to take away state funding if the states do not enforce it, but it seems unlikely that most states would have the resources to block every road that crosses their borders.
Since the question was inspired by current events, I’ll just say that if they were going to do it, they would have done it by now. Doesn’t seem likely that it will be imposed for this pandemic.
That would fail miserably, as ‘state’s rights’ relies on the tenth amendment, which only states that non-enumerated powers go to the people. Regulating Interstate commerce and promoting the general welfare are both powers explicitly granted to the federal government.
What you would think is in direct opposition to all Supreme Court precedent on the commerce clause. The 1942 case Wickard v. Filburn determined that a farmer growing wheat on his own land for personal use qualified as interstate commerce, as him growing his own instead of buying on the market affected wheat prices.
I don’t think it’s likely that congress would pass this kind of restriction, but that doesn’t mean that they couldn’t do it.
There is a constitutional right to travel internally, arising mostly from the 14th Amendment. In the case of Saenz v. Roe (1999), the Supreme Court held that there are three components to that right:
(1) the right to enter one state and leave another,
(2) the right to be treated as a welcome visitor rather than a hostile stranger, and
(3) (for those who become permanent residents of a state) the right to be treated equally to native-born citizens.
Setting aside its underlying and inexcusable bigotry, the exclusion of citizens of Japanese ancestry from parts of the West Coast during World War II demonstrated that the U.S. Government could limit internal travel during a time of national emergency.
What could the president do without congressional consent?
Since practical matters got brought up, there are some significant ones to navigate.
Local economies in border areas mostly ignore the borders. There are some effects for certain businesses like commercial trucking needing to meet the standards of both states. For the most part economies in near border areas operate in ways where the border is largely irrelevant.
As a kid I grew up in the Toledo area just a couple miles from the Michigan border. I crossed the border on my bike routinely as a young teenager. My private high school had students from Michigan. Many people in the area work in a different state than the one they live in. Shopping for essentials is overwhelmingly tilted towards stores in Ohio. All the hospitals are in Ohio. The Toledo water supply provides drinking water to residents of Michigan. (Not an issue for transport of water but potentially an issue for repair/service crews or any MI resident workers.) There are easily a couple dozen border crossings in the area. Some crossings are in residential areas. Closing all the border crossings would cut essential workers in the area off from their jobs. It would also cut people off from where they currently get essential services and goods. Managing a middle ground in the area would still cause delays and require manning checkpoints just to reduce but not eliminate large potential flows of the disease across the border.
Then there are the longer supply chains that have heavily adopted just in time delivery. They crisscross state and international land borders. Michigan and Minnesota combine for over 90% of US iron ore production. Ohio is the number one producer of rubber and plastics. Ohio is also the third largest manufacturing state behind only CA and Texas with their much larger populations. Michigan has a single bridge that carries about a quarter of all merchandise trade between the US and our largest trading partner Canada. Part of the reason for that bridge’s importance is that it is feeding the heavily linked industrial bases of the US Midwest and Ontario and Quebec on the Canadian side. Trucks and their possibly infected drivers need to cross state borders for manufacturing to operate. Without that we are facing lengthy shutdowns even in states that are not closed.
An very simple example from one of my jobs in Michigan long ago. I was a supervisor for a just in sequence warehouse that supported a GM plant. Due to a quality issue in paint production we had to support an inspection of some exterior trim parts that might have been delivered with bad paint. The bad paint, and likely much of the plastic, came from Ohio. The part was made and painted in Canada. We got daily to twice daily shipments of those parts from Canada. The part then got installed in Michigan. The cars produced got shipped to the entire North American market. There was very little storage for new cars near the plant. They had to ship quickly for the plant to continue running.
Now that is an example of a business that was shut down anyway. Essential manufacturing is not immune to the same kinds of issues from disrupting supply chains. Thanks to just in time processes some essential businesses will start to grind to a halt in days if one of their suppliers is cut off by a state border closing. They may not even be businesses in a state that shares a border with the closed state.
part 2 thanks to character limit
Then there are essential things like food. We have national and international supply chains for distribution from regional production across many state borders. Ordering food online that just shifts the distribution chain; Amazon still needs to stock their warehouse from somewhere. Packaging for the food also relies on manufacturing and their supply chains. To top it off, grocery stores typically only maintain a couple days worth of sales on their shelves. Shelves around the nation can start to empty very quickly from disruptions multiple states away.
Along with that civilian experience in a logistics company I got the “joy” of serving as a battalion logistics officer in the National Guard. For extra fun, I was an Armor officer not even a trained Logistics officer. I will share a couple quotes about logistics in another challenging human endeavor
In the “War Against COVID-19” closing state borders is a seemingly simple tactic. The logistics of actually doing it without cutting people off from essential goods and services is not simple.
While the Supreme Court did uphold the validity of Executive Order 9066 in Korematsu v. US, that decision was explicitly repudiated two years ago in Trump v. Hawaii (the “travel ban” case.) So that’s not a valid precedent as far as the Supreme Court is concerned.
That isn’t to say that a health-based ban on internal travel would be unallowable. But since it infringes on what the Supreme Court has previously found to be a constitutional right in US v. Guest, such a ban would probably have to pass the strict scrutiny test.
Criticized in Trump v. Hawaii, but not explicitly reversed, and the majority applied rational basis review. I have little doubt that, even applying strict scrutiny, the court would uphold internal travel restrictions in a time of pandemic with more than 130,000 Americans already dead.