With the COVID-19 pandemic, what power do states have to restrict travel and what would be the impact of doing that? Professor Buzz Scherr joins the show to discuss.
Follow Professor Buzz Scherr on Twitter at https://twitter.com/buzzscherr
Listen to Professor Lucy Hodder discuss the state response to outbreaks, especially how New Hampshire was prepared for the pandemic: https://www.podbean.com/eu/pb-fpdu7-d4f16e
UNH Franklin Pierce School of Law is now accepting applications for JD, Graduate Programs, and online professional certificates, learn more and apply at law.unh.edu
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A. J. Kierstead (Host):
With the COVID-19 pandemic, what power do states have to restrict travel and what will be the impact of it? Professor Buzz Scherr joins me to discuss. This is The Legal Impact, presented by the University of New Hampshire Franklin Pierce School of Law. Now accepting applications for JD, graduate programs, and online professional certificates. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or host and do not constitute legal advice, or necessarily represent the official views of the University of New Hampshire. Buzz, the stay home orders across the states raises many concerns. Do individual states have any power to control people from crossing borders?
Buzz Scherr:
Well, they have some power. The short answer, as always in these things that are complicated is, it depends. It depends what the reason is for them, one, having a ban on people entering the state. If the reason is a version of economic discrimination and primarily to interfere with interstate commerce, then it's going to be unconstitutional. There's a U.S. Supreme Court case, several decades old, in the early to middle part of the 21st century, called Edwards versus California. Where California at the time, I think it was during the depression era, had a law that said poor people, basically migrants who didn't have a place to live and didn't have jobs, were banned from the state. In Edwards versus California, the U.S. Supreme Court said that violates the commerce clause. That's unconstitutional.
Buzz Scherr:
On the other hand, there's another U.S. Supreme Court case where, during a period when yellow fever was of concern, a ship wanted to dock in New Orleans and New Orleans had a ban on the ship docking there. It had people on it, Americans and others who wanted to get off, and they banned it for public health reasons. The Supreme Court said that's okay. In short, yes, probably, but it's a pretty dramatic and expensive measure. If you think about the border between New Hampshire and Massachusetts-
A. J. Kierstead (Host):
There's countless roads. I mean, it's impossible to cover every road.
Buzz Scherr:
Exactly. That's true. Less roads in Vermont. We've got the convenience of a river separating Vermont and New Hampshire, which reduces the number of roads. A good number of Maine, New Hampshire also. In theory that could probably be done for public health reasons, but practically speaking, it doesn't make sense.
A. J. Kierstead (Host):
I'd imagine, I mean, right now if they decided to move to indefinitely, it would probably very quickly end up to the Supreme court, I'd imagine.
Buzz Scherr:
Eventually it would, and there might be a fast track. I'm not hearing that any states are deciding to do that. What states are doing, it varies. New Hampshire, the governor has issued a advisory to stay at home. This is the key distinction as you look at this happening around the country is this. Has the governor used his or her police powers to ban people from going outside, and is somebody who goes outside, are they committing a misdemeanor under the laws of that state? If so, then the police can stop cars that are outside. They can stop cars with Massachusetts license plates and kick them out of the state.
Buzz Scherr:
That's not happening, because right now the governor's executive order is an advisory and there is no crime being committed if you are not abiding by the advisory. It's a pretty broad advisory. You can go to pharmacies, you can go to hospitals, you can go to grocery stores, you can go to doctor's appointments, you can go to work if you fit in the many types of businesses that are identified as essential. At this point, it's not a lockdown, where the governor could, in theory, mobilize the national guard to enforce a lockdown. We'll see whether we get there or not. One of the "benefits" of living in New Hampshire in these times is, the population is less dense.
Buzz Scherr:
You look at what's happening in the major urban and metropolitan areas, or the highly populated states, it's much more difficult to control people going out. Even if you have a shelter in place advisory, with a population in a city of nine million people like New York City, but you are allowed to go out to grocery stores and doctor's appointments and essential workers can go to jobs, that's a lot of people still going out.
A. J. Kierstead (Host):
It definitely is.
Buzz Scherr:
I don't know, if ever we go to a formal lockdown, when it's a crime to leave your house and the National Guard is called in to enforce it, my guess is it's unlikely to happen in New Hampshire. Depending on how things play out, the National Guard may be activated at the state level. At the federal level you can only use National Guards for natural disasters, so the language really isn't there at this point to use it at the federal level, to have the president use it for public health shutdowns. It's used for hurricanes and floods and the like. But at the state level, governors can have that power. To step back and look at it more broadly, that this is a public health emergency, gives state governors a lot more power in managing the situation and issuing advisories or issuing orders. That's the long and short of it.
A. J. Kierstead (Host):
I'll put a link in the episode description to Professor Hodder's podcast I did a couple months ago, before all this really went down to the severe levels. Because she did a good job summarizing how the state of New Hampshire specifically was already prepared for a lot of this with a lot of legislation, and just in general, logistical prepping that they had.
Buzz Scherr:
They are. That's the good news.
A. J. Kierstead (Host):
Now, when it comes to commercial transportation and various other economic implications to it, would it be even harder for states to regulate?
Buzz Scherr:
Yeah, and I don't know that they want to. I mean, they can order that businesses shut down, like restaurants and the non-essential businesses. They can, to some extent, monitor that. I don't know, as an economic matter, whether they want to shut down commercial trucking companies who are moving food from warehouse to a grocery store. There's not a one size fits all on this. That's the real struggle.
Buzz Scherr:
Fortunately, most states, they have laws in place that give governors a lot of flexibility in trying to manage what we're going to shut down. Still, it's not a matter of keeping the economy running, it's more of a matter of keeping the essential businesses running so that people can get food, so that they can get health care, so they can get those essential things that they need. They can go to the pharmacy. It's a matter of managing the shutdown to keep the essentials going. You look at, for example, the governor's advisory and identification of what are essential businesses and who are essential workers, and it's nine pages long.
A. J. Kierstead (Host):
I saw the message, I'm like, "Oh, this keeps going and it keeps going," and it gets very specific, but there are a lot of industries that are still staying open. Especially with the ability in 2020, where people can work from home, I mean, we're dealing with technical implications of that happening. But I mean, we're doing this via Zoom conference right now.
Buzz Scherr:
Well, that's a good example, but you think of all the pieces that are required to be operating, to get food, to get vegetables from California to a warehouse in New Hampshire, and then distributed to all the groceries stores in New Hampshire, and to have the grocery stores stocked, and to have the cashiers there, and to have the cleaners there. You take just one little thing and you begin to realize how complicated it is just to keep the food supply running. Not to mention health care.
Buzz Scherr:
You look at, another problem that I've been working on is jails. Jails are what I would call mandatory cruise ships. It has all the dangers of cruise ships in how quickly stuff gets spread, number one. People are in there not by choice, other than the staff, and they, well, the jails I've talked to have screening procedures for people who are coming in who've been sentenced or coming in pre-trial. They don't have testing available. All their screening is, "Do you have symptoms?" If you don't have symptoms, it doesn't mean you don't have the virus, it just means you don't have symptoms yet.
Buzz Scherr:
It's a really difficult circumstance, and that's a whole different bundle. To go through managing that, the superintendents in the state each have some authority to do stuff on their own. In some circumstances, depending on the inmate, the courts and the prosecutors need to be involved. The governor can't tell jails what to do. He can order the head of the state Department of Corrections to do certain things, but the jails, the houses of correction, are county institutions and run by the county commissioners. I've just described a whole bunch of different lines of authority for a really difficult situation.
A. J. Kierstead (Host):
I mean, these lines of authority carry over to other industries or sectors severely. I mean, we talked about health care. I mean, this has been one of the issues with regards to testing being widespread across the U.S., and regulations that come with that.
Buzz Scherr:
In terms of testing, boy, in many areas in this country, perhaps not in New Hampshire, but in many areas of this country, we're going to be rationing testing. We want to test the health care providers, we want to test certain types of essential people that we need out there. But given that jails and prisons are mandatory cruise ships, don't we want to test people when they're entering those facilities, so if they test positive, they can be isolated? What's the priority list of who gets tested? Early on in this it was a rich people and celebrities, that sure seemed to be the appearance. I think that's not as much the case anymore. I think a lot of people took a lot of heat for that. But it tells you what a incredibly complicated webs of authority, lines of people, of businesses, of individuals it takes to just provide health care. To just feed people in this pandemic.
Buzz Scherr:
It's the downside of being such a complicated, highly developed economic and social entity in the United States. I mean, it's stating the obvious, but boy, the complications of being so big and how we manage that and how we sustain ourselves in the kind of crisis that has existed for millennia, other than natural disasters like earthquakes and floods and hurricanes, this is the kind of disaster that has been around for millennia. You call it the bubonic plague, you call it smallpox, you call it polio, you call it yellow fever. It's been around forever. The more complicated the society, the more developed the society, the more we rely on so many different parts of the economy just to get through a day, to eat, to have the internet, to heat our house. It's harder now to manage this than it used to be.
A. J. Kierstead (Host):
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