From today’s decision by Judge Lance E. Walker (D. Me.) (citing Ilya’s blog post on The Case for “Regular” Judicial Review of Coronavirus Emergency Policies):

In response to the nationwide spread of Novel Coronavirus 2019, Governor Janet Mills, like many other governors around the country, has issued a series of executive orders designed to slow the rate of infection. One aspect of Governor Mills’ executive orders is a warning to people from away that, unless they own or can rent property in Maine where they can quarantine themselves for 14 days, they will find no shelter here. Meanwhile, the Governor has reopened hotels, inns, and campgrounds to Maine traffic, meaning members of the traveling public who—supposedly—have already completed a 14-day quarantine inside Maine.

In this action, a group of in-state businesses and out-of-state individuals who want to provide and/or access Maine lodging and campground facilities, contend the Governor cannot impose restrictions that deprive non-Mainers of their fundamental right to travel and participate in the commerce that currently is available to Mainers. Given this focus, the action does not threaten to set aside the entire body of executive measures introduced by Governor Mills and her aides, though, if successful, it would kick open the doors to the State’s tourist season, unless the Governor modifies her executive orders to restrict lodging and campground activity in ways that do not have the practical effect of discriminating against people from away….

Through their Motion for an Expedited Preliminary Injunction, Plaintiffs ask that the Court “enjoin the Quarantine Restrictions.” Specifically, they ask for an order (1) lifting the 14-day quarantine for those entering Maine, (2) lifting the “ban” on all travel from certain locations in the United States, and (3) lifting the prohibition that prevents “Campground plaintiffs from opening to out-of-state visitors until those visitors have” self-quarantined in Maine. {[As to item 2], [t]he parties dispute whether the Governor’s order imposes such a ban at all. Defendant maintains Executive Order 34 only suggests “residents of States of New York, New Jersey, and Connecticut should refrain from travel to Maine” (emphasis added), and that this suggestion is not criminally enforceable. Presumably, this implies that persons from these states able to self-quarantine in private premises in Maine will be tolerated. Plaintiffs nevertheless ask that any such “ban” be lifted as part of the preliminary relief requested in this case.

This is another vexing aspect of the quarantine rule. It purports to criminalize any “violation of this Order,” but expresses the Order’s requirements using a smorgasbord of verbs: for example, “[v]isitors are instructed not to travel to Maine if they are displaying symptoms of COVID-19″ (emphasis added). A prospective traveler is left to wonder whether violating the Order’s “instruction,” or suggestions that they “should refrain from travel to Maine” constitute a “violation.” Either the quarantine rule is an executive order enforceable by criminal penalties or it is a sincere suggestion, but it cannot be both. And to signal to an uncertain public that it is officially the former without clarifying what makes a “violation” runs counter to the most basic tenets of due process; to wit, to give fair notice in plain language precisely what conduct constitutes a criminal act.} …

Citing Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Plaintiffs argue that the restriction imposed on their fundamental right to travel is subject to the most demanding level of judicial scrutiny, the aptly named “strict scrutiny” test, because the constitutional right in question is fundamental. In order to stand, the 14-day quarantine rule must be motivated by a compelling state interest and must also be narrowly tailored to serve the government’s interest.

Assuming the pandemic is a compelling justification for restrictions on constitutional liberties, the Plaintiffs argue the 14-day quarantine is not the least restrictive means of achieving that end. In their view, a restriction as drastic as a quarantine must be backed up with individualized findings, like the sort of on- the-spot findings associated with the arrest or seizure of a person based on probable cause, and the kind of process that would be required under the Fourth Amendment to substantiate any prolonged detention.

Citing Jacobson v. Massachusetts (1905), Governor Mills argues that the “strict scrutiny” test does not apply to this case. {The Governor also cites Campagnie Francaise de Navigation a Vapeur v. Board of Health of the State of Louisiana (1902), in which the Supreme Court upheld a quarantine order that barred entry of healthy persons into a municipality currently under quarantine. The Court explained that such quarantine orders are not inherently “repugnant to the Constitution.” Nothing in this Order suggests otherwise.} She contends that because her executive orders respond to a serious threat to public health, the quarantine must be upheld unless and until it is determined to have “no real or substantial relation to” preventing the spread of disease or is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

If Governor Mills is correct that Jacobson applies, the Court must, in turn, apply a legal standard that gives the most extraordinary deference to the State’s police powers. In other words, Jacobson represents a legal standard that is at least the opposite of strict judicial scrutiny. It barely authorizes judicial review at all.

When assessing a claim that the fundamental “right to travel” has been infringed by some state action, I look first to the Supreme Court cases providing a legal framework for that claim, rather than to the broadly-stated holding in Jacobson, a case rejecting a “substantive due process” challenge to a compulsory vaccination requirement. Though the Court upheld the state’s mandatory vaccination law in Jacobson, and noted that states have generous leeway to enact legislation in the face of a public health emergency, it explicitly acknowledged the role of the courts to adjudicate subsequent claims that a state has gone too far. Jacobson (recognizing that a state’s police power “might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons.”).

In the eleven decades since Jacobson, the Supreme Court refined its approach for the review of state action that burdens constitutional rights. This evolution has likewise refined the scope of the “constitutional right to travel.” Noting the “debate about the appropriate standard of review” in “right to travel” cases, the Supreme Court solidified the framework for this analysis in Saenz v. Roe (1999). And when the Supreme Court elaborates a new standard for analyzing a constitutional claim, we use that most recent formulation, rather than the framework from a decision for a different constitutional claim, made by a different claimant, in a different state, facing a different public health emergency in a different century.

Plaintiffs also correctly point out that Jacobson has been thoughtfully criticized by legal scholars for lacking in limiting principles characteristic of legal standards. Lindsay Wiley & Stephen I. Vladeck, Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review, 133 HARV. L. REV. F. at p. 4 (forthcoming 2020); see also Ilya Somin, The Case for “Regular” Judicial Review of Coronavirus Emergency Policies, THE VOLOKH CONSPIRACY (Apr. 15, 2020,  4:16 PM), emergency-policies (“imposing normal judicial review on emergency measures can help reduce the risk that the emergency will be used as a pretext to undermine constitutional rights and weaken constraints on government power even in ways that are not really necessary to address the crisis.”).

Instead, the permissive Jacobson rule floats about in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties, free from the inconvenience of meaningful judicial review. This may help explain why the Supreme Court established the traditional tiers of scrutiny in the course of the 100 years since Jacobson was decided. {The Supreme Court has had good cause to do so, including the experience of two World Wars. See, e.g., Ziglar v. Abbasi (2017) (“History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights.” (Breyer, J., dissenting)).}  Although Jacobson reflects that, when one weighs competing interests in the balance, the presence of a major public health crises is a very heavy weight indeed and scientific uncertainties about the best response will afford the state some additional leeway to err on the side of caution, it does not provide the standard of review for this case. Civil libertarians may question whether it ought to provide the standard of review in any case. But perhaps that depends on whose ox is being gored.

The court then applied strict scrutiny under the right to interstate travel, which the Court had recognized, but declined to issue the preliminary injunction that plaintiffs had requested, at least for now:

I agree with Plaintiffs that fundamental rights are burdened by the order to quarantine. However, I am not persuaded, at this date, that the measure is not the least burdensome way to serve a compelling governmental interest, given all that we do now know…. But as the Governor points out, “[c]onditions on the ground can change quickly.” …

Maine’s 14-day quarantine combined with its Restarting Plan, which allows hotels, motels, and campgrounds to open to out-of-state residents only if they have “completed quarantine guidelines” within the state, effectively closes the border for many would-be travelers. If an out-of-state resident wishes to travel to Vacationland this summer, but does not have their own property from which to comfortably shoulder the burden of 14 days of quarantine, they are unable to come to the state without violating the Governor’s Orders…. Taken together, the Orders significantly hinder both the “right of a citizen of one State to enter and to leave another State,” and “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State,” two of the three “components” of the right to travel recognized by the Supreme Court….

Though it is clear that Maine’s Quarantine Restrictions burden Plaintiffs’ “right to travel,” they have not shown a likelihood of success sufficient to justify a preliminary injunction. Plaintiffs argue the regulations sweep too broadly by including those who have already been infected with COVID-19 and those who have self-quarantined in states other than Maine. Motion at 10-11. State government representatives have acknowledged that the quarantine is broad by design. Dr. Shah admits the 14-day quarantine is intended to “err on the side of caution,” even if that means implementing a restriction that may not be necessary in all instances. There is no doubt evidence that the state’s restriction is not the least restrictive means to furthering its goal.

But at this early stage, without a developed factual record, I find Plaintiffs have not yet shown they are likely to succeed on this claim. It is not at all clear that there are any less restrictive means for the state to still meet their goal of curbing COVID-19, and Plaintiffs’ proposed alternatives are at least arguably unworkable. See Opposition at 13- 14 (noting the “scientific uncertainty” surrounding issues like immunity, communicability, and testing).

These are matters of public policy to be implemented by politicians and to be evaluated by voters, not by unelected judges, at least at this nascent stage. Because there is evidence pointing in both directions, and the other three preliminary injunction factors do not lessen Plaintiffs’ burden to show likelihood of success, I find Plaintiffs have failed to show they are likely to succeed on … their claim that the Governor has violated their fundamental right to travel….

You can also see the federal government’s contrary argument, as well as many other court filings in the case.