Today’s federal district court decision denying a preliminary injunction of Maine’s 14-day travelers’ quarantine + limits on hotels, inns & campgrounds is full of interesting analysis. Opinion here: courtlistener.com/recap/gov.usco…
2/ The court rejects the application of Jacobson as a superseding standard of review for public health emergency orders, citing my forthcoming article w/ @steve_vladeck as well as @IlyaSomin’s @volokhC post. #JacobsonWatch
papers.ssrn.com/sol3/papers.cf…
papers.ssrn.com/sol3/papers.cf…
3/ Like the courts relying on Jacobson to uphold coronavirus abortion bans & other restrictions, the Maine district court misrepresents Jacobson as applying mere rationality review and nothing more (maybe less?), saying Jacobson “barely authorizes judicial review at all.”
4/ Ultimately, the court agrees w/ the plaintiffs that strict scrutiny applies to restrictions on interstate travel, finds the 14-day quarantine + hotel/campground restrictions are effectively a bar on anyone who doesn’t have access to non-rental lodging in which to quarantine.
5/ BUT the court finds based on the current factual situation (emphasizes lack of testing capacity) & best available scientific evidence re: risk, the travelers’ quarantine probably survives strict scrutiny b/c “it is not at all clear that there are any less restrictive means”
6/ Of note re: #immunitypassports, the court strongly implies history of infection/antibodies may eventually need to be assessed as part of an individualized risk assessment of travelers, but for now, scientific uncertainty re: immunity justifies blanket restrictions on travel
7/ court also finds the plaintiffs’ procedural due process claim (I always feel the need to apologize to nonlawyers about how ridiculous that term sounds) that individual quarantine orders require a hearing is unlikely to be successful.
8/ Court finds (due to emergency circumstances) plaintiffs are not entitled to a hearing prior to imposition of travelers quarantine. Also finds they haven’t shown that they’ve been denied an opportunity to seek review after the quarantine is imposed (via federal or state court)
9/ In conclusion court reiterates travelers’ quarantine + hotel limits are likely to be upheld based on current facts, but as the situation evolves, that could change. If so, easy fix for state would be to keep quarantine, but permit out-of-staters to quarantine in temp lodgings
