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Monday, July 6, 2020
Unpacking Court Order Denying TRO to Block COVID Emergency Rules
By Robert Thomas @ 7:27 PM :: 1829 Views :: COVID-19

Federal Court Denies TRO: Hawaii Gov's Coronavirus Travel Quarantine Doesn't Stop Anyone From Coming To Hawaii

by Robert Thomas, InverseCondemnation, July 3, 2020

As expected, a quick decision and opinion from the U.S. District Court for the District of Hawaii, after yesterday's hearing on the plaintiff's request for extraordinary preliminary relief (a TRO and PI) in the case challenging the Hawaii Governor's imposition of a 14-day self-quarantine on all travelers inbound to Hawaii (and other emergency orders, although the TRO request was limited to the quarantine).

When the opinion starts this way, you know which way it is headed:

Claiming that there is no emergency in Hawai‘i or the United States, Plaintiffs seek temporary injunctive relief enjoining Defendant from enforcing the 14-day quarantine requirements of the Emergency Proclamations and an order to show cause why a preliminary injunction should not issue.

Op. at 1-2 (footnote omitted). I'm not sure that's exactly what the plaintiffs were arguing ("no emergency" anywhere), but you get the drift.

The Governor challenged the plaintiffs' standing (they have not been injured, he claims), but the court avoided ruling on that question after concluding that the Governor's quarantine does not actually prohibit anyone from coming to Hawaii. It's not a ban on travel, just a (very onerous) condition placed on travel. The plaintiffs, the court concluded, "elected not to travel—whether to or from Hawai‘i—because they do not want to be quarantined." Slip op. at 11. This isn't an express ban (feel free to come to Hawaii, as long as you are prepared to stay indoors in a single location for the next two weeks), nor is it pretextual (see slip op. at 21-22).

The court's reasoning was based mostly on Jacobson (the 1905 Massachusetts vaccination case from the U.S. Supreme Court -- what we call the "real liberty" case). Applying rational basis review, the Hawaii court concluded that the plaintiffs have little chance of success on the merits, because the governor's actions "bear a real or substantial relation to the public health." Slip op. at 17.

It doesn't take much for a government act to pass the rational basis test, and there was more than enough in the record for the court to conclude that the governor's actions are in the ballpark. (We have to express a little disappointment that the court didn't throw in a cite or footnote to The King v Tong Lee, 4 Haw. 335 (Kingdom 1880) (in banco), a case that although not binding on this court, certainly supported its conclusion; and it's always fun to cite Kingdom cases).

One thing we didn't care for was this citation to a recent Fifth Circuit case:

Indeed, “Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.” In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020).

Slip op. at 14.

That to us, is not quite accurate. Indeed, as the Supreme Court has noted, "[e]mergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon the power granted or reserved." Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934). We think it is more accurate to say that even in non-emergency times, our rights are subject to reasonable regulation without substantial judicial interference (that's the nature of the rational basis test, no?).  

The right to travel plaintiffs assert is a liberty interest under the Fifth and Fourteenth Amendments (not a Privileges and Immunities Clause right to travel claim, which the federal government tried unsuccessfully to raise). The court concluded this wasn't a "ban" on travel, just something that makes travel a really big hassle. It does have a "deterrent effect," but "any deterrent effect the quarantine may have on Plaintiffs’ travel to Hawai‘i does not amount to a violation of their right to travel. We are not here dealing with a quarantine or Emergency Proclamations with a purpose of deterring Plaintiffs (or other out-of-state travelers) from entering Hawai‘i." Slip op. at 22. In other words, the court isn't going to look behind the expressed purpose of the quarantine, and examine the motives of the governor. And the restrictions don't discriminate in favor of Hawaii residents because they have to go through most of the same things (although, as we understand it, residents are subject to slightly less restrictions than nonresidents when it comes to what activities they may engage in while in quarantine).

The court also held that even if the quarantine were subject to a higher level of scrutiny, it survives:

Accordingly, based on the record presently before it, the Court finds that the quarantine survives strict scrutiny and Plaintiffs cannot at this time establish a likelihood of success or raise a serious question going to the merits of their right to travel claim.

Slip op. at 25.

To us, that is a big hint about where the court is headed on this issue eventually, unless there's some kind of revelatory evidence produced.

We listened in to the hearing yesterday, and thought that the issues were well argued by excellent counsel on both sides, and the judge was well-prepared also. But we can't say that this ruling was unexpected.

We're not sure what's next (probably some kind of action on the non-quarantine measures, some move to supplement the evidentiary record, or maybe an amendment to the complaint to allege a P&I right to travel violation, we're guessing), but we shall continue to follow along. This now seems to be a race against time, as the governor has announced that at the end of July, the quarantine is getting modified to allow those travelers who go through a COVID "precheck" and who can show that they are virus-free, to travel inbound without going through the two-week stay inside restriction.

Several items, in the event this case or these issues float your boat:

July 22, 2020: we are moderating a superstar panel of lawprofs and practitioners (including the counsel for the plaintiffs in the Hawaii case, Harmeet Dhillon), for an ABA sponsored program, "Emergency and Police Power: Property Claims in Times of Crisis." Also speaking are Professors Craig Konnoth (Colorado) and John Nolon (Pace), and Professor Sarah Adams-Schoen (Oregon).

For more on the powers of Hawaii's governor during emergencies, see our forthcoming article in the U. Hawaii Law Review, "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).

We were a guest on the Eminent Domain Podcast on the takings aspects of these shut down orders (not an issue in the Hawaii case, as the plaintiffs have not raised a takings claim).

If you want a deeper dive into the takings issues, download our draft article, "Evaluating Emergency Takings: Flattening The Economic Curve."

Lots going on, even on this holiday weekend.

PDF: Order Denying Plaintiffs' Application for Temp. Restraining Order, Carmichael v. Ige, No. 1:20-cv-00273-JAO...

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