Courts tend to believe that the Privileges and Immunities Clause gives a constitutional right to travel between states. It would be a big hairy mess. In fiction, Tom Clancy explored it in Executive Orders.
> Courts tend to believe that the Privileges and Immunities Clause gives a constitutional right to travel between states.
Interstate closures happen all the time for all kinds of reasons.
If someone wants to unconditionally exercise their "constitutional right to travel between states" when epidemic control measures are in place, they can walk or swim.
Then somebody takes the whole thing to the courts, and the courts tell the Feds to knock it off and let people through because they are violating the law of the land.
If you're implementing a lockdown, you'd close more than just the interstates for that exact reason. At a minimum, you'd probably want manned checkpoints on the interstates, state highways, major county roads, and obvious choke points like bridges; and unmanned barriers on the minor roads.
> Then somebody takes the whole thing to the courts, and the courts tell the Feds to knock it off and let people through because they are violating the law of the land.
I'm skeptical that the courts would act as you assume when "the public Safety may require it."
Also, who says "the feds" have to implement it? It's my understanding that state authorities have broad powers to combat epidemics, too. They're also the ones with the manpower to implement lockdowns.
The authority to restrict travel into a state (from an adjacent state) unambiguously lies with the federal government, under even the narrowest possible interpretation of the Commerce Clause.
Honestly, the scenario I had in mind was intrastate travel restrictions, especially around cities.
Also covered by the Commerce Clause, since 1937.
So you're saying the commerce clause requires states to keep intra-state transportation infrastructure open, regardless of the public safety risk? That's unbelievable, since that infrastructure is regularly closed for public safety reasons (e.g. closing roads during blizzards):
https://www.mprnews.org/story/2019/12/01/blizzard-closes-hig...:
> To the west, the Minnesota Department of Transportation closed a stretch of Interstate 35 between Duluth and Cloquet. The Cloquet Police Department posted a photo of vehicles stranded along Highway 33 in that city late Saturday.
https://apnews.com/25d827c21bff49bba79339c51a6f3407:
> The Nebraska State Patrol has closed Interstate 80 from the Wyoming border east to North Platte as well as all state highways in the Nebraska Panhandle as a late-winter blizzard swept into the state.
As an example, this is one of primary legal arguments for why the No Fly List is unconstitutional.
I think the right has to be the former, and general, nondiscriminatory restrictions would be OK. I posted in another comment that state governments regularly shut down roads and other infrastructure due to public safety concerns. I think closing roads in a lockdown could be done under similar authority.
The latter, to be provided access to infrastructure in all circumstances, is kinda nonsensical when you think about it. For instance, it would mean everyone had a constitutional right to drive through roads that have been closed for construction, which would be ridiculous.
It is the same reason that courts have consistently rejected public safety arguments for depriving Americans of firearms without due process, as well as de facto deprivation attempts via regulatory technicalities like a million dollar tax on guns or banning ammunition.
Do you have a citation for that?
If you're correct, this interpretation is to be verging on Constitution-as-a-suicide-pact territory, and the Constitution should be amended or the opinion changed to correct the flaw, and allow suspension of those rights during serious epidemics.
As a practical matter, this is on the right side of history. There are myriad examples of governments stripping basic rights from the population in the name of public safety or some other contrived (or real) emergency. It virtually always ends poorly for the population because governments consistently abuse this latitude when expedient for whoever is in power.
Would you have the courts remove all rights from anyone the government deems a "terrorist"? Or give Trump the power to suspend elections because pandemic/reasons? It is exactly the same argument. Giving people strong rights carries risks but also powerful benefits.
That's not my argument, though. I'm arguing against a kind fundamentalist absolutism that doesn't even allow for narrow, reasonable, and necessary exceptions in any circumstances. Applied to the First Amendment, that logic says you should be able to yell fire in a crowded room or libel someone, yet those things are prohibited and we haven't found ourselves in a dystopia on account of that. The Constitution itself even has such exceptions written into it, and the founders recognized their necessity even when not enumerated.
I get where you're coming from, but I no longer believe that kind of absolutism is a protection from tyranny. Letting an undetected Typhoid Mary freely travel the country in the most convenient ways possible isn't actually going to do anything to prevent Trump from suspending elections or declaring Joe Biden a terrorist, if he likes, it's just going get a lot of people sick.
Here’s a link to the Constitution, you can read it back to front. Congress writes Federal law, you can read Article I to confirm that much, and Article II and III to confirm that the President and the Courts do not.
You can then review Article I to confirm the limits of Congress’ powers, and then Amendments I through XXVII to figure out what changed. For example, the first five words of the First Amendment is “Congress shall make no law”, and the subsequent passage outlines the various rights that Congress shall make no law a about. It doesn’t say anything like “except in public emergencies” or “except if aliens invade” or “except unless they really really want to.” All case law related to the first amendment is related to what the press, association, peaceably to assemble, petition, redress, grievances, establishment of religion, the exercise of religion and so on and so forth even mean.
What it comes down to is, back to front, every right listed within the Constitution and even some that are not listed at all is considered a natural right, not a civil right, not an insert-descriptor-here right and it is outside the authority of the Congress, and by extension the enforcers and interpreters of the laws which Congress passes to curtail or abridge these with two notable exceptions in habeas corpus when suspended and in conviction of a crime after due process has been established and a sentence passed.
You were born with these rights and you will die with them as far the Constitution is concerned, and since we practice Constitutional supremacy rather than say, Parliamentary supremacy, it’s not within the powers of Congress, the President, the Courts or any other jurisdiction subject to the US Constitution to throw their hands up, squint really hard and say “no, not really, not in circumstances X, Y, and Z.”
As I understand it, the Italy "lockdown" isn't actually a case of "we will shoot you if you go there"; it's just making travel incredibly inconvenient. Given that we're probably too late for absolute containment, simply slowing the spread by 90% would be a huge gain, and might be possible through deliberately breaking the transport network.
There was a case yesterday of some girls lying about an emergency to go to Sardinia, then they bragged about lying on Instagram and, i believe, the police later arrested them for lying on the form.
It's all academic anyway. Once there are police checkpoints on major roads shutting them down, what are you gonna do? It could take years for a case to wind through the courts, by which time the epidemic is long over.
source: https://www.cdc.gov/quarantine/aboutlawsregulationsquarantin...
This kind of law would have to be tested.
The fundamental rights of a citizen are ideas above their implementation.
The kind of de facto prohibition on travel you are proposing has been attempted by the government several times in the past in a variety of contexts and the courts have never looked kindly upon it. The court views these "you can still freely travel, but you'll have to walk" style arguments from the government as a transparent attempt to deprive individuals of a well-established Constitutional right absent due process.
Plus the president is effectively above the law these days. So anything is possible... likely? Who knows
Fortunately fiction writers are not going to decide whether a continent suffers in some massive way or not.
What will happen is that the law will pending the emergency be rescinded and re-instated afterwards. Judges aren't stupid, nor are they robots.
The few historical examples where the courts let enforcement of elementary rights slide for a bit due to "emergency" are almost universally national embarrassments because of the abuses that followed. Judges aren't keen to be named and shamed as one of those people that let that happen for the sake of expediency.
Maybe in other countries but not in the US. It is a fundamental misunderstanding of how individual rights work in the US.