An Invisible Battle in a War Against an Invisible Enemy: The Fourth Amendment and the Right To Travel in the Age of COVID

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.