Rhode Island Cracking Down on New Yorkers

Gina Raimondo has apparently lost her copy of the Constituiton.

While some governors are still not taking the COVID-19 outbreak seriously enough, refusing to order schools and non-essential businesses closed, others are going a wee bit overboard.

Bloomberg (“Rhode Island Police to Hunt Down New Yorkers Seeking Refuge“):

Rhode Island police began stopping cars with New York plates Friday. On Saturday, the National Guard will help them conduct house-to-house searches to find people who traveled from New York and demand 14 days of self-quarantine.

“Right now we have a pinpointed risk,” Governor Gina Raimondo said. “That risk is called New York City.”

New York is the epicenter of the coronavirus outbreak in the U.S., on Friday reporting a total of 44,000 cases.

Rhode Island has just over 200, and it has begun an aggressive campaign to keep the virus out and New Yorkers contained, over objections from civil liberties advocates.

Raimondo, a Democrat, said she had consulted lawyers and said while she couldn’t close the border, she felt confident she could enforce a quarantine.

While one understands the impulse here, this is not only outrageous but almost certainly unconstitutional. The Privileges and Immunities Clause states that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” How a governor can single out the citizens of another state for discriminatory treatment is beyond me.

Indeed, Alexander Hamilton, writing in Federalist 80, deemed this principle “the basis of the union.”

Now, it might not apply here because she’s making this apply even to Rhode Islanders:

“Yesterday I announced and today I reiterated: Anyone coming to Rhode Island in any way from New York must be quarantined,” the governor said. “By order. Will be enforced. Enforceable by law.”

Raimondo signed an executive order Thursday that applies to anyone who has been in New York during the past two weeks and through at least April 25. It doesn’t apply to public health, public safety, or health-care workers.

While one can understand the politics of excluding healthcare workers from the order, it also shows the absurdity of the whole thing. Healthcare workers are, after all, far and away the most likely to have exposure to the virus.

The governor has literally called out the National Guard to enforce this:

National Guard members will be stationed at the T.F. Green airport, Amtrak train stations and at bus stops. The citizen-soldiers will be following up with people at local residences. The maximum penalty for not complying: a fine of $500 and 90 days in prison.

So, we’re literally going to have armed soldiers going door to door demanding that people prove they haven’t been to New York lately?

Lovely.

It gets better:

Just before 1 p.m. Friday, state police were set up on Interstate 95 northbound, at the rest stop closest to the Connecticut border. A mile or two before that, motorists could see signs ordering all New York passenger vehicles to pull over at the rest stop.

One trooper could be seen there, checking license plates as cars went by. At the stop itself, a number of officers were assembled around a tent, ready to question vehicle occupants.

This is insane.

The local chapter of the American Civil Liberties Union blasted the new rules, objecting to the collection of motorists’ contact information in particular.

“While the Governor may have the power to suspend some state laws and regulations to address this medical emergency, she cannot suspend the Constitution,” Rhode Island ACLU executive director Steven Brown said in a statement. “Under the Fourth Amendment, having a New York state license plate simply does not, and cannot, constitute ‘probable cause’ to allow police to stop a car and interrogate the driver, no matter how laudable the goal of the stop may be.”

Honestly, I’m not sure that’s the best argument. Several states are in lockdown and stopping anyone found driving to verify that they have an acceptable reason for doing so. But I agree that having an out-of-state plate can’t possibly be a legitimate justification for a traffic stop.

FILED UNDER: COVID-19, Government, Health
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Teve says:

    A long time ago when I was conservative, I had heard so many terrible things about the ACLU from Rush Limbaugh etc. that I wondered one day why these people are so bad, and I went to their website, where they had a list of cases they’ve been involved in, and positions they’ve taken, and I found out I agreed with about 80% of their positions. It was not long after that I started sending them money.

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  2. Stormy Dragon says:

    Are you arguing that what state you are from is a protected class?

    Can a business be sued for discriminating against out of state job applicants?

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  3. James Joyner says:

    @Stormy Dragon: It’s not a protected class in terms of hiring. But state governments are prohibited from treating residents of other states differently, at least in terms of fundamental freedoms like the right to travel.

    I’m not a lawyer and haven’t researched the basis for various exceptions that exist. States are allowed to treat residents and non-residents differently in terms of tuition at colleges and universities or eligibility for unemployment benefits, for example. That seems straightforward, given how taxes are collected.

    One that has intrigued me but not enough to investigate: Maryland charges those with out-of-state EZ-Passes higher tolls than those with Marland EZ-Passes. How that’s legal, I haven’t the foggiest.

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  4. OzarkHillbilly says:

    May you live in interesting times.

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  5. charon says:

    New Yorkers also unwelcome in Ron DeSantis’ Florida.

    Mandatory 14 day quarantine.

    I doubt anyone has time or inclination to fight this crap though.

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  6. gVOR08 says:

    Gov Ron DeSantis has done the same thing here in FL. He previously ordered travelers from NY and NJ to self quarantine. Now he’s added LA to the order. However, there doesn’t seem to be enforcement beyond cops meeting incoming flights and telling people to self quarantine, although there’s talk of highway check points.

    He’s doing this despite not issuing a state lockdown beyond closing restaurants, gyms, and, very belatedly, beaches. I think it’s partly the Trumpian trick of blaming outsiders, partly doing what he can without pissing off MAGA hatters, partly that tourism is our state industry (after Social Security), and partly distracting from having done nothing to shut down spring break, which likely dispatched a lot of infected partiers back to other states.

    FL has more cases than LA. Isn’t there an old saw about barn doors. Tourist season is generally thought of as ending around April 15 anyway.

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  7. JohnMcC says:

    There is a fascinating history of California reacting to the Great Depression and Dust Bowl by attempting to halt migration of ‘Okies’ and ‘Arkies’. Google “Sheriff ‘Two-Gun’ Davis” and/or ‘Bum Blockade’ and I bet you’ll be amazed at how terrible people in one state can treat their fellow Americans from another.

    Or even better — find your old copy of “Grapes of Wrath”. It might even become topical again, eh?

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  8. Stormy Dragon says:

    @James Joyner:

    Preventing unnecessary travel during an emergency is a straight forward application of state police power.

    Travelling long distances to a place you don’t live is the epitomy of unnecessary.

    Absent protected class status for “being from New York”, Rhode Island is allowed to single them out for different treatment in a case like this as long as there is a rational basis for it.

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  9. Stormy Dragon says:

    @JohnMcC:

    That’s hardly comparable. The dust bowl wasn’t infectious.

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  10. charon says:

    @gVOR08:

    Religious services have been and are an efficient mode of transmission.

    The Lutheran church in my seniors development was not holding services last Sunday, and this year there is no sign outside with an Easter services schedule.

    I am guessing that was voluntary though, as the Baptists down the road a bit do have a big sign posted with a schedule of various times (6AM start) for Easter services.

    ( This is a 10,000 home AZ seniors development with the two churches within it).

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  11. Nightcrawler says:

    I gotta get the hell out of Florida before other states start barring people from here. Things are getting worse here, so I can totally see this happening.

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  12. Sleeping Dog says:

    When I saw that in the Globe yesterday, I began imagining images of wealthy New Yorkers being hunted down like fugitive slaves. Wondered as well the legal basis for doing this short of marshal law.

    Raimondo has been mentioned as a possible Biden VP, this should squelch that talk.

    @James Joyner:

    Maryland charges those with out-of-state EZ-Passes higher tolls than those with Marland EZ-Passes. How that’s legal, I haven’t the foggiest.

    Some sort of you can do it and I can do it reciprocity is in play and it’s not worth the court challenge. NH has a resident discount as does Maine, if the pass is registered to an in state address.

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  13. JohnMcC says:

    @Stormy Dragon: Actually, what made the comparison seem reasonable is the Constitution mentioned in the Original Post. And that no one seemed to actually justify the blockade as Constitutional but most elites (ie the Governor, the LATimes) supported the closing of the border anyhow.

    People did ask at the time what the legal justification was but (trusting this old man’s memory here) none was offered. Perhaps you can cite an actual law or precedent?

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  14. Stormy Dragon says:

    @JohnMcC:

    Rhode Island isn’t blockading. The people from New York are free to come in, provided they comply with the quarantine procedures.

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  15. Stormy Dragon says:

    @JohnMcC:

    Perhaps you can cite an actual law or precedent?

    The first question is what level of scrutiny this policy gets. Dr. Joyner seems to be arguing that it deserves strict scrutiny. I’m arguing that it only gets rational basis scrutiny, since “being from New York” isn’t a protected class.

    Question for Dr. Joyner: does he think parole and bail restrictions on leaving the state are unconstitutional?

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  16. CSK says:

    Charlie Baker has asked everyone traveling to Mass. to self-quarantine. Not ordered.

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  17. wr says:

    @Stormy Dragon: “Preventing unnecessary travel during an emergency is a straight forward application of state police power.”

    Amazing how libertarian philosophy evolves when one is scared of getting sick…

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  18. Stormy Dragon says:

    @wr:

    I haven’t called myself a libertarian for more then a decade now, and for the last three years I’ve been of the opinion that libertarians aren’t a thing that actually exists at all. Case in point from almost a full two years ago:

    @Stormy Dragon:

    To be more specific, “libertarians” almost always break down into one of:
    1. Hipster Republicans – the far largest group, this person has voted Republican in every single race of their entire life, but doesn’t want to believe they’re just a run of the mill Republican
    2. Haute Bourgeoisie – everything in their life is great, and they hate being expected to do something about problems not directly affecting them or their immediate family members
    3. Iconoclasts – they’re just reflexively against everything and want to disguise sheer orneriness as a virtue
    4. Ur-fascists – when they say the government is too big, what they mean is that it’s big enough to deter them from using physical violence to make people comply with their will

    I’m sorry for not fitting into the box you want to put me in.

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  19. James Joyner says:

    @Stormy Dragon: I think a state can put travel restrictions on a convicted criminal as a condition of early release. I don’t think states would be allowed to bar those in parole from another state from crossing their borders.

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  20. Kit says:

    The words suicide pact spring to mind.

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  21. DrDaveT says:

    But state governments are prohibited from treating residents of other states differently, at least in terms of fundamental freedoms like the right to travel.

    As you noted yourself, they are not treating residents of New York differently. They are treating people who have recently been in New York differently. I don’t see how the Immunities clause applies to that.

    (You are aware that the Pentagon is now treating people who have recently been in New York differently from other people, right?)

    All of this aside, we already know that fundamental freedoms can be overridden by public health concerns. That’s why we can lock up Typhoid Mary if she won’t stop working in food service industries, despite her obvious constitutional right to do so.

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  22. Stormy Dragon says:

    @James Joyner:

    And what about people on bail, who have not been convicted of anything?

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  23. gVOR08 says:

    @Stormy Dragon: Yeah. There seemed to be a big jump in self identified “libertarians” back when it became uncool to be Republican during W’s terms. There seems to be a very real thing of not wanting to be identified as a Democrat. I’m not sure how Ds deal with that. It’s presumably a product of demonetization by Rs and the perception of Democrats as the party of minorities.

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  24. wr says:

    @Stormy Dragon: “I’m sorry for not fitting into the box you want to put me in.”

    My fault — you used to call yourself a libertarian, it stuck in my head… Still find it odd that someone who used to subscribe to libertarian beliefs about the role of government seems to be applauding this sort of internal, papers-please travel control, but people do change…

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  25. Stormy Dragon says:

    @wr:

    The housing crisis and aftermath made empirically clear that the theoretical basis for libertarianism is wrong, which is why I stopped calling myself a libertarian.

    Trump made it clear that most “libertarians” don’t actually believe anything they say anyways, which is why I stopped calling other people libertarians.

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  26. Stormy Dragon says:

    @wr:

    Still find it odd that someone who used to subscribe to libertarian beliefs about the role of government seems to be applauding this sort of internal, papers-please travel control, but people do change…

    Because it’s becoming clear that Red States are going to go full social darwinist with regard to containing this plague in a few weeks and I want to preserve my state’s ability to defend itself from them when that happens.

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  27. Monala says:

    @Stormy Dragon: I do have a question about this:

    Travelling long distances to a place you don’t live is the epitomy of unnecessary.

    What about traveling to help an elderly parent in another state who has no one else to help them, or to pick up a college age child whose school has shut down?

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  28. R.Dave says:

    This is a helpful high-level commentary on the legal issues:

    https://blog.harvardlawreview.org/contagion-and-the-right-to-travel/

    Basic conclusion is that courts are unlikely to intervene.

    Opponents of the state executive orders are unlikely to meet the high bar necessary to challenge state officials’ efforts to block new seeds of coronavirus contagion. Unlike other outbreaks, there is no clearly established standard for when individuals are infectious. So unless or until states can rapidly test asymptomatic individuals, it is unlikely that any court would be willing to question state officials’ restrictions on intrastate travel by individuals coming from designated jurisdictions. More problematic, perhaps, might be the breadth of the jurisdictions ordered for quarantine. Even still, the likelihood of judicial intervention in the middle of a global public health crisis where there is at least a plausible rationale for the order’s geographic scope is near zero. Except for a total ban on non-residents from identified jurisdictions entering a state that grossly mistreats non-residents over residents, it is hard to fathom any muscular judicial intervention.

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  29. gVOR08 says:

    @charon:

    the Baptists down the road a bit do have a big sign posted with a schedule of various times (6AM start) for Easter services.

    Florida hasn’t ordered anything closed except restaurants, gyms, and belatedly beaches. But around here a lot of stores are closed or doing curbside pickup of online orders. In our nearby large strip mall the grocery store is open, as is, god bless them, the Starbucks drive through. Pretty much everything else is closed or curbside. Except the Hobby Lobby. I see God has told them to stay open. Apparently it’s God’s will that they not lose any money over this. To which I can only say, “Jeebus.”

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  30. Tyrell says:

    What’s she going to do next – barbed wire, guard towers, and dogs?
    Looks like she is using the old East German government procedures manual from 1963.

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  31. pony says:

    Shame if NY blocked all truck traffic to Rhode Island for a few weeks. Let’s see how they do with zero international commerce for a bit.

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  32. Just nutha ignint cracker says:

    @charon: Even if one did have the time, money, and inclination, by the time that this type of an action would get through the system a finding in your favor would probably be that they shouldn’t have done that (as opposed to can’t and must stop). What would be the point?

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  33. Just nutha ignint cracker says:

    @Monala: The propriety (morality) of an act cannot be evaluated by what some individual might find it necessary to do. It must be evaluated on the basis of what happens when everybody decides that they must do it.

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