As the country begins the gradual process of re-opening for the summer months, states are slowly easing travel restrictions and quarantine requirements. This should come as a welcome surprise to many travelers, since, just a month ago, the governors of at least 17 states had issued executive orders requiring those entering their states from out-of-state to quarantine for up to fourteen days while imposing lesser or no restrictions upon their own residents. See Karen Schwartz, Driving and Travel Restrictions Across the United States, N.Y. Times (April 16, 2020). In some cases, only those entering from "hotspots," such as New York, New Jersey, or Louisiana, were required to quarantine. The orders varied greatly and still do.

Some were more restrictive than others. In Delaware, Governor Carney's executive orders required travelers under quarantine to remain confined to a specific location and leave only to obtain medical care (see Del., Seventh Modification: Dec. of State Emergency (March 29, 2020)), while, in West Virginia, Governor Justice's executive order permitted travelers under quarantine to leave confinement to obtain essentials such as food (see W. Va. Exec. Order, No. 14-20 (March 30, 2020)). Under Governor Raimondo's executive order, Rhode Island residents were permitted to utilize public parks and spaces, while those under quarantine were ordered confined to their homes. See R.I. Exec. Order No. 20-14 (March 28, 2020). Meanwhile, in Oklahoma, those entering from hot spots were ordered to quarantine, while residents were subject to less restrictive stay-at-home orders depending on their county of residence. See Okla. Exec. Order, No. 2020-07 (March 29, 2020). In some counties, no restrictions existed. In North Dakota, those entering from outside the state were ordered to quarantine, while, at one point, the state remained one of just five states with no travel restrictions applicable to its own residents. See N.D. Exec. Order 2020-02.1 (April 8, 2020); see also Sarah Mervosh, Denise Lu and Vanessa Swales, See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times (updated April 20, 2020). The numbers change daily.

Various states set up roadblocks and checkpoints to await travelers on highways and at airports, where police and National Guardsmen demanded travelers' information and informed them of their quarantine duties. In Rhode Island, for example, where Governor Raimondo's now-vacated March 26, 2020, executive order initially required only those entering the state from New York and planning to remain to quarantine (see R.I. Exec. Order, No. 20-12 (March 26, 2020)), non-commercial vehicles bearing New York license plates were stopped at checkpoints and pulled over at random (see Jared Pelletier, Rhode Island starts to pull over vehicles with out-of-state plates, NBC 10 News (March 30, 2020)). And National Guardsmen and police went door-to-door, searching exclusively for New Yorkers and cars bearing New York license plates. See Tom Mooney, Not 'all that neighborly': Police, National Guard out in Westerly, looking for New Yorkers, Providence Journal (March 27, 2020). After much criticism from the Rhode Island ACLU and New York's Governor Cuomo, who had threatened to sue, Governor Raimondo later extended the quarantine requirement to all entering Rhode Island from other states, including Rhode Island residents. See R.I. Exec. Order, No. 20-14, supra. In response, all non-commercial vehicles bearing out-of-state license plates were stopped at checkpoints, and the Rhode Island National Guard and police expanded their searches to all vehicles bearing out-of-state license plates. See Tom Mooney, On coronavirus patrol, state police, Guard stopping 1,500 cars a day, Providence Journal (April 10, 2020); and Jesse Leavenworth, Rhode Island National Guard sets up checkpoints at Connecticut border in attempt to track potential COVID-19 cases, Hartford Courant (April 02, 2020). Meanwhile, in Delaware, state police maintained that Governor Carney's March 29, 2020, executive order "authorize[d] any Delaware law enforcement officer to stop a vehicle driving within the state simply because it [wa]s displaying out-of-state tags," (Matt Smith, Delaware State Police authorized to search out-of-state vehicles, Delaware County Times (April 4, 2020)), except on certain highways.

While such executive orders and restrictions are undoubtedly well-intentioned responses to a global health crisis, and states' rights to impose curfews and quarantines are long-established, bedrock functions of their police powers, in exercising those powers, officials remain bound by the contours of the Constitution. In the instances highlighted above, at least the Fourth Amendment and various constitutional provisions encapsulating the right to travel are implicated.

The Fourth Amendment, Stops and Checkpoints

The Fourth Amendment protects all who make up the national community from unreasonable searches and seizures. In the landmark Katz v. United States, 389 U.S. 347 (1967), the Supreme Court held that the Fourth Amendment's protections apply whenever one has an actual expectation of privacy that society is prepared to recognize as reasonable. While the privacy interest is strongest in the home, the Supreme Court has repeatedly held that one also has a privacy expectation in automobiles, albeit to a lesser degree. See, e.g., Byrd v. United States, 584 U.S. ___ (2018) (holding Fourth Amendment protections apply to drivers of rental cars even if not listed on rental agreements). To this end, vehicle stops are permissible only where police have probable cause to believe that a traffic infraction or similar offense has occurred or probable cause or reasonable suspicion that an occupant has committed, is committing, or is about to commit a greater offense. See Whren v. United States, 517 U.S. 806 (1996) (holding pretextual stops permissible so long as predicated upon probable cause or reasonable suspicion of an offense). In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court held that the police may not stop vehicles at random for the purpose of checking drivers' licenses and vehicle registrations.

In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court held that probable cause requires a substantial basis for reasoning that a fair probability exists that contraband will be found in a particular place or that one has committed, is committing, or is about to commit a crime or offense. In the landmark Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that a reasonable suspicion exists where, pointing to specific, articulable facts and drawing upon experience, it can reasonably be inferred that one has committed, is committing, or is about to commit a crime. If police have a proper reasonable suspicion, they may detain a pedestrian or motorist for a reasonable amount of time until the suspicion is quelled. See, e.g., United States v. Montoya De Hernandez, 473 U.S. 531 (1985) (finding sixteen hours reasonable under circumstances). If, during that period of detainment, police develop an independent reasonable suspicion that the detainee may be armed or dangerous, they may perform a limited, non-invasive pat-down. See Terry, 392 U.S. at 27. For this reason, Terry stops are often referred to as "stop and frisks."

Random stops of vehicles with out-of-state license plates, as were reported to have occurred in Rhode Island (see Jared Pelletier, supra), and Delaware (see Matt Smith, supra), thus eerily mirror Delaware v. Prouse and most likely violate the Fourth Amendment. Such stops are founded upon neither probable cause nor any reasonable suspicion, as a license plate alone cannot reveal whether one is in violation of a quarantine order or merely innocuously passing through a state. Checkpoints provide viable alternatives for obtaining such information. But they satisfy the Fourth Amendment in few, limited circumstances and require specific safeguards.

Checkpoints are permissible only when designed to serve "special needs, beyond the need for normal law enforcement." Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 449 (1990) (upholding DWI checkpoints). As such, their primary purpose may not be to detect evidence of wrongdoing or make arrests. See City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (holding narcotics checkpoints unconstitutional). Courts apply a three-part balancing test to determine checkpoints' constitutionality: A checkpoint is constitutional only if the government's legitimate interests, the effectiveness of the checkpoint in achieving those interests, and the level of intrusion upon individuals' privacy balance in the government's favor. See Michigan Dept. of State Police, 496 U.S. 444. Applying this test, the Supreme Court has upheld sobriety checkpoints, see id., border checkpoints to ascertain immigration status (see United States v. Martinez-Fuerte, 428 U.S. 543 (1976)), as well as roadblocks to investigate hit-and-run traffic accidents or similar exigencies (see Illinois v. Lidster, 540 U.S. 419 (2003)). The Supreme Court also suggested in Delaware v. Prouse, 440 U.S. at 673-74, that checkpoints for the purpose of verifying drivers' licenses and vehicle registrations might also be constitutional. Circuit courts have also upheld airport security checkpoints. See, e.g., United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc) (holding airport security screening not contingent upon consent).

The Supreme Court's balancing test again emphasizes that reasonableness is the hallmark of the Fourth Amendment. As such, checkpoints that afford police unchecked or unfettered discretion do not pass muster. In City of Indianapolis v. Edmond, 531 U.S. 32, for example, the court held that the Fourth Amendment does not permit "narcotics checkpoints," checkpoints for "general purposes of crime control," or checkpoints whose primary purpose is to detect evidence of wrongdoing. Likewise, checkpoints or roadblocks in which persons or vehicles are stopped randomly, rather than universally or at fixed intervals, generally fail Fourth Amendment scrutiny as affording police unfettered discretion. In this regard, Delaware v. Prouse is again instructive. There, the court suggested that, while random stops to check drivers' licenses and vehicle registrations are unconstitutional because they afford police "standardless and unconstrained discretion," Delaware v. Prouse, 440 U.S. at 661, the "[q]uestioning of all oncoming traffic at roadblock-type stops is [a] possible alternative." Id. at 663 (emphasis added). In concurrence, Justice Blackmun argued that the Court's suggestion should "also include[] other not purely random stops (such as every 10th car to pass a given point) that equate with, but are less intrusive than, a 100% roadblock stop." Id. at 664. While the Court is yet to elevate its dictum to a true holding, the lower courts routinely look for uniformity in adjudicating the constitutionality of akin special-needs searches. See, e.g., MacWade v. Kelly, 460 F.3d 260 (2d Cir. 2006) (upholding subway container searches applied to every nth person); and United States v. Green, 293 F.3d 855 (5th Cir. 2002) (upholding license-and-registration checkpoint stopping every sixth vehicle).

Applying the court's test, we see that reported checkpoints vary in their ability to withstand Fourth Amendment challenges. On one end of the spectrum, checkpoints at states' borders at which vehicles are uniformly stopped to briefly enquire as to occupants' whereabouts and inform them of applicable quarantine orders, as were reported to exist in parts of Florida (see David Jones, Checkpoints set up entering Fla. From Ga. & Ala., in effort to limit spread of COVID-19 some drivers skirt barriers, First Coast News (updated March 30, 2020)), are least suspect. For they exist to serve legitimate public-health interests by ensuring compliance with governors' quarantine orders, are likely an effective means of achieving that interest, given their informational nature, and are brief in duration, only minimally encroaching on occupants' rights to privacy. Moreover, their primary purpose is informational, not to make arrests or obtain incriminating evidence, and, given their uniform nature, do not afford police unbridled discretion. On the other end of the spectrum, checkpoints at which only vehicles bearing out-of-state license plates are required to stop, as were reported to exist in Rhode Island (see Jesse Leavenworth, supra), are the most suspect. While such checkpoints clearly seek to achieve legitimate governmental interests and are brief in duration, informational, and arguably minimally invasive, because they do not account for residents who may be returning to the state and who are otherwise required to quarantine, their effectiveness is questionable. And this is compounded by their lack of uniformity: Stopping only vehicles bearing out-of-state license plates proves less workable than stopping all or every nth vehicle and thus risks an abuse of discretion. Other checkpoints will fall at various parts of the spectrum depending upon their characteristics.

The Right To Travel and the Privileges and Immunities Clause

The right to travel is what makes the United States the united states. While the Constitution does not explicitly mention a right to travel, the Supreme Court has held since at least 1868 that the right is fundamental and readily inferable from the Constitution's historical context. See Crandall v. Nevada, 7 U.S. 35 (1868) (holding tax on persons leaving state unconstitutional). In 1999, in Saenz v. Roe, 526 U.S. 489 (1999), the Supreme Court identified three components of the right to travel. The first component constitutes the right to move freely from one state to another, which the Court held inferable as "a necessary concomitant of the stronger Union the Constitution created." Id. at 501. The second component bars discrimination by states against citizens of other states and is derived from the Privileges and Immunities Clause (P&I Clause) of Article IV. Id. at 501-02. The third component constitutes the right to permanently change one's state of residence and finds support in the Fourteenth Amendment's Privileges or Immunities Clause. Id. at 502-06. The Supreme Court has also utilized the Commerce Clause to strike down discrimination by states against interstate commerce. See, e.g., Pike v. Bruce Church, 397 U.S. 137 (1970) (holding statute requiring locally grown cantaloupes to advertise state of origin violative of Dormant Commerce Clause where state's interest was outweighed by resultant heavy costs). (The Supreme Court's quarantine decisions have primarily rested upon Commerce Clause grounds. See, e.g., Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380 (1902) (holding state quarantine laws in the absence federal preemption presumably do not offend the Commerce Clause irrespective of incidental impact upon commerce.)) The second component of the right to travel is most pertinent at this juncture.

The P&I Clause guarantees to all United States citizens (exclusively) the "right to be treated as a welcome visitor rather than an unfriendly alien" when in another state. As the Supreme Court held in Baldwin v. Fish and Game Commission of Montana, 438 U.S. 371 (1978) (holding recreational hunting not a fundamental right), part of being treated as a welcome visitor includes being afforded equal access to "those privileges and immunities bearing upon the vitality of the Nation as a single entity." Id. at 383. Historically, this also included fundamental rights that existed as a matter of state law. See Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, 20-47 (2014). As Justice Bushrod Washington famously wrote in Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (upholding regulation forbidding non-residents from gathering oysters and clams), perhaps the most well-known case to interpret the P&I Clause, the clause protects those rights "which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states."

The P&I Clause thus protects the rights of United States citizens to own and sell property in the state of their choosing; to enter into and be bound by out-of-state contracts; to equal access to out-of-state courts; to pursue a livelihood or profession in the state of their choosing; to obtain medical care and be afforded police and fire department services out-of-state; to engage in business and economic pursuits in the state of their choosing on substantially equal terms; and other fundamental rights and protections when out-of-state. See generally John B. Attanasio and Joel K. Goldstein, Understanding Constitutional Law §6.10 (4th ed. 2012). On the other hand, the Supreme Court has held that P&I Clause does not encompass equal access to recreational activities, such as hunting, or to public records. See Baldwin, 438 U.S. 371; and McBurney v. Young, 133 S. Ct. 1709 (2013) (holding right to access of public records under state FOIA not encompassed by P&I Clause). To determine whether governmental action is permissible under the P&I Clause, courts apply a two-step methodology: First, courts determine whether the pertinent benefit or activity constitutes a privilege or immunity protected by the clause as defined above. If such a privilege or immunity is implicated, it will be upheld only if "(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced … bears a substantial relationship to the State's objective." Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 298 (1997) (internal citation and quotation marks omitted) (holding statute denying non-resident taxpayers state income tax deduction for alimony paid violates P&I Clause). Simply put, if a state's discrimination with respect to a privilege or immunity bears a substantial relationship to a substantial objective it seeks to achieve, the P&I Clause is not offended.

Applying the test, we see that some quarantine orders more readily withstand P&I Clause scrutiny than others. Applying the first step, at least two privileges bearing upon the nation as a single entity are implicated. One is the right of citizens to own, use, and enjoy property out-of-state. Another is the right to intrastate travel. While the Supreme Court has never explicitly recognized a right to intrastate travel, or travel from within a state, several circuit courts have. See, e.g., Lutz v. York, 899 F.2d 255 (3d Cir. 1990) (recognizing right to intrastate travel as fundamental). The right is a necessary concomitant of the P&I Clause itself; enjoyment of privileges and immunities on equal terms means very little without the ability to freely travel within a state's borders. Moving on to the second prong, protection of the public's health by minimizing exposure to COVID-19 is obviously a substantial reason for issuing such quarantine orders. Constitutionality thus depends upon whether they bear a substantial relationship to achieving that objective.

This also varies. Quarantine orders issued in states with no stay-at-home orders whatsoever are most suspect. Take North Dakota for example. Per Governor Burgum's executive order, those arriving from outside the state were ordered to self-quarantine (see N.D. Exec. Order 2020-02.1, supra), while North Dakota remained one of just five states, along with South Dakota, Nebraska, Iowa, and Arkansas, yet to impose any travel restrictions upon its residents. See also Sarah Mervosh, et al., supra. As the state's infection rate and, thus, the populace's risk of exposure had continually risen, though (see The New York Times, North Dakota Coronavirus Map and Case Count, N.Y. Times (updated April 20, 2020)), it is questionable how requiring only those entering the state from other regions of the country could be substantially related to limiting North Dakotans' risk of exposure absent comparable measures to prevent intrastate transmission of the virus. Likewise, Governor Stitt's March 29, 2020, executive order, supra, which left Oklahoma the only state to require those entering from hotspots to quarantine while taking a county-by-county approach to stay-at-home orders (see id. and Karen Schwartz, supra), is susceptible to the same objection, albeit to a lesser degree.

Quarantine orders applicable to only those entering from hotspots and issued in states with universal stay-at-home orders are less suspect but open to a similar objection. For they seem to fail to take account of population densities within particular states. In New York, for example, those hailing from New York City are significantly more likely to test positive for COVID-19 than those hailing from more rural and less densely populated parts of the state, such as, say, Hamilton or Yates County. See The New York Times, New York Coronavirus Map and Case Count, N.Y. Times (updated April 20, 2020). This has been reflected nationally: On the whole, those living in more densely populated areas are far more likely to contract COVID-19 than those hailing from more rural areas. See S.J. Goetz, et al., Rural COVID-19 Cases Lag Urban Areas but Are Growing Much More Rapidly, NERCRED COVID-19 Issues Brief No. 2020-3, Penn State University (April 9, 2020). Yet, under Governor DeSantis's executive order, for example, those entering Florida from Atlanta, Los Angeles, etc., are subject to less restrictive stay-at-home orders, while those entering from rural parts of Louisiana, New York, New Jersey, and Connecticut are subject to additional quarantine orders. See Fla. Exec. Order, No. 20-82 (March 24, 2020). Similarly, then, it is questionable how a policy that produces this result can be substantially related to minimizing intrastate transmission.

Lastly, states with stay-at-home and quarantine orders that apply uniformly to all entering or returning from out-of-state are least suspect and most likely to withstand a P&I Clause challenge. Such is the case with Rhode Island. See R.I. Exec. Order, No. 20-14. Governor Raimondo's executive orders adequately account for population density in their uniform application. They also apply equally to Rhode Islanders returning from out-of-state and thus discriminate only minimally, if at all, against citizens of other states.

Our Invisible Battle

History makes undoubtedly clear that rights are most at risk during times of crisis.

This is understandable, as it is during such times that government's power is at its apex. And this is rightfully so: It is axiomatic that the most fundamental function of any government is the protection of its citizens' lives and well-being. The danger, though, is that, for some, with an increased desire for safety comes an increased indifference towards fundamental rights. Combating this indifference is our invisible battle.

Dean L. Pillarella is an associate at McGivney, Kluger, Clark & Intoccia's New York City office, where he focuses on civil rights and tort litigation in the corporate and insurance defense arena. He sits on the Legal History Committee of the New York City Bar Association and can be contacted at [email protected].