Federal Court To USA In Hawaii Quarantine Challenge: Explain Why You Filed P&I Right To Travel Amicus, When Plaintiffs Didn't Raise P&I Right To Travel In The Complaint

by Robert Thomas, InverseCondemnation, June 24, 2020

Yesterday, in the second of two cases that we've been following (both of which are in the U.S. District Court for the District of Hawaii, and are challenging the Hawaii Governor's coronavirus-related shutdown orders for a variety of reasons, see For Our Rights v. Ige (assigned to Judge Watson) and Carmichael v. Ige (assigned to Judge Otake)), the United States (via the U.S. Attorney and the Department of Justice) filed a Statement of Interest, arguing the shut-down orders violate the Privileges and Immunities Clause of the Constitution (article IV, section 2). You know, that's the "and" clause, that doesn't do much (but it does prohibit discrimination against out-of-state residents).

The Statement asserts that the Governor's two-week self-quarantine requirement, which is imposed on all inbound travelers regardless of residency is "effective[ly] discriminati[on]" against nonresidents because yes, both tourists, nonresidents, and returning residents must shut themselves in after arrival, but there are some limitations only applied to nonresidents, who are prohibited from working, renting a car, or using ridesharing services, all things that residents are not barred from doing.

The Constitution does not permit the effective discrimination challenged in this case. Although Hawaii may adopt reasonable measures to protect its residents from the COVID-19 pandemic, it cannot impose measures that “in practical operation” discriminate against out-of-state visitors, unless the measures are substantially related to ensuring public safety. Chalker v. Birmingham & Nw. R.R. Co., 249 U.S. 522, 527 (1919); see Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003). Hawaii’s sweeping self-quarantine mandate appears to be insufficiently tailored to ensuring public safety. As such, it cannot be enforced under Article IV’s Privileges and Immunities Clause.

Statement at 2. See also "Department of Justice sides with plaintiffs fighting Ige's 14-day travel quarantine" from the Star-Advertiser.

And in an interesting twist, Judge Otake shortly thereafter issued an order, asking the feds to explain why they filed this Statement which argues an issue that the plaintiffs themselves didn't raise. The complaint raised a "right to travel" claim, but couched it in terms of a Fifth Amendment liberty interest, and did not make an article IV, section 2 P&I right to travel claim:

EO: On 6/23/20, the United States filed a Statement of Interest pursuant to 28 U.S.C. § 517, asking the Court to "hold that the Hawaii Governor's sweeping 14-day self-quarantine mandate, which effectively discriminates against out-of-state residents, likely violates Article IV's Privileges and Immunities Clause." ECF No. 26 at 17. Section 517 authorizes the United States to attend to its interests "in a suit pending in a court of the United States," 28 U.S.C. § 517, and "submit a statement... expressing its views on relevant issues in which it has an interest." Wortman v. All Nippon Airways, 854 F.3d 606, 617 (9th Cir. 2017). The Ninth Circuit has compared a § 517 statement to an amicus brief. See M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir. 2012). Notably, non-parties must seek leave to file amicus briefs and courts do not ordinarily consider arguments raised only by amici. See, e.g., Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1043 (9th Cir. 2007) ("Generally, we do not consider on appeal an issue raised only by an amicus." (internal quotations omitted) (citations omitted)); California v. U.S. Dep't of the Interior, 381 F. Supp. 3d 1153, 1164 (N.D. Cal. 2019) ("The scope of amicus briefs, however, should be limited to the issues raised by the parties." (citation omitted)). In addition, motions are briefed in accordance with Local Rule 7.2, which prohibits further or supplemental briefing without leave of court. With these principles in mind, the United States is ordered to: (1) explain why it should be allowed to submit briefing without leave of court in this expedited matter; (2) identify whether it has an interest in this litigation beyond a general desire to protect its citizens' constitutional rights and, if not, whether the law supports its involvement under such circumstances; and (3) articulate why its involvement is proper when it seeks to expand the scope of this litigation. Indeed, Plaintiffs have not presented a Privileges and Immunities Clause argument in either the Complaint or the Motion for Temporary Restraining Order. The United States' response, not to exceed three (3) pages, is due by 4:00 p.m. on 6/24/20. Plaintiffs and Defendant may submit responses regarding the propriety of the United States' Statement of Interest, subject to the same deadline and page limitation.

(JUDGE JILL A. OTAKE)(otake1) (Entered: 06/23/2020)

However, the first complaint did raise expressly a P&I right to travel claim, and even though the cases are separate, Governor Ige also yesterday asked the court to consolidate the two cases and Judge Watson issued this order:

EO: On June 23, 2020, Defendants filed (1) a motion to consolidate cases 20-cv-00268-DKW and 20-cv-00273-JAO, and (2) an ex parte motion to shorten time for hearing on the motion to consolidate. Dkt. Nos. 22-23. Pursuant to Local Rule 7.1(c), the Court will decide the motion to consolidate without a hearing. Therefore, the ex parte motion to shorten time, Dkt. No. 23, is DENIED AS MOOT. Any opposition to the motion to consolidate must be filed on or before NOON on June 25, 2020. No reply will be permitted. In addition to the parties in this case, the Clerk is instructed to serve this Order on the plaintiffs in Case No. 20-cv-00273-JAO. IT IS SO ORDERED. (JUDGE DERRICK K. WATSON)(tyk) (Entered: 06/23/2020).

The hearing on For Our Rights' motion for preliminary injunction is set for the day after tomorrow (Friday, June 26, at 10:30 am Hawaii Time), and the TRO hearing in Carmichael is scheduled for next week, (Thursday, July 2, at 11am Hawaii Time).

Stay tuned, we'll keep following and post any updates of consequence.

Our thoughts on the Hawaii-law claims in these lawsuits: "Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority," 43 U. Haw. L. Rev. ___ (forthcoming 2020).

Our thoughts on the takings issues emergency orders present: Evaluating Emergency Takings: Flattening The Economic Curve.

PDF: USA Statement of Interest, Carmichael v. Ige (D. Haw. June 23, 2020)

UPDATE: Group drops lawsuit against Gov. Ige's emergency proclamation

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Politico: Court rebukes Justice Department move in Hawaii quarantine case

June 23, 2020: Mark Your Calendars: Hearings Set For Two Challenges To Hawaii Gov's Lockdown Orders