ON THE CONSTITUTIONALITY OF HARD STATE BORDER CLOSURES IN RESPONSE TO THE COVID-19 PANDEMIC.

• Author: Gussen, Benjamen Franklen

TABLE OF CONTENTS I. INTRODUCTION 3 II. THE RIGHT TO INTERSTATE TRAVEL 13 A. As an Inferred Fundamental Right 13 B. As an Express Guarantee 18 III. THE CONSTITUTIONAL ANALYSIS 23 A. Strict Scrutiny 23 B. Free Trade Approach 29 C. Structural Primogenitor: Justificatory Necessity 35 IV. THE EXISTENCE OF AN EMERGENCY 38 A. State Police Power 43 B. Salus Populi Jurisprudence 52 V. ONLY REASONABLE WAY TO DEAL WITH THE EMERGENCY 77 A. The Least Restrictive Means Test 78 B. Proportionality Analysis 83 VI. FINAL THOUGHTS 92 I. INTRODUCTION

The World Health Organization (WHO) Director-General, Dr. Tedros Adhanom Ghebreyesus, ushered the first International Day of Epidemic Preparedness, held on 27 December 2020, by reminding us that the coronavirus crisis "will not be the last pandemic." (2) Our preparedness to respond to the next pandemic depends on the lessons we have learned in 2020. (3) One key lesson is the alarming speed with which COVID-19 has spread across the globe. (4) The basic reproduction rate for COVID-19 ([R.sub.0]) is estimated at 5.7, which means that one person infected with COVID-19 can potentially transmit the virus to 5-6 people. (5) In comparison, the 1918 Spanish flu had a reproduction rate between 1.4 and 2.8. (6) In some countries, like Australia, the first line of defense was to close the national borders, given this high contagion rate. (7) COVID-19 was declared a worldwide pandemic by the WHo on 11 March 2020. (8) soon after, an executive-led response guaranteed international border closures:

On 21 January 2020, the Australian Chief Medical Officer, Dr Brendan Murphy, determined that the newly emergent 'human coronavirus with pandemic potential' was a communicable disease with potential to cause significant harm to human health. Australian federal biosecurity officials began screening arrivals on flights from Wuhan, China on 23 January 2020... Australia recorded its first case [on 25 January 2020]. On 1 February, the Commonwealth government required returning citizens who had been in mainland China to self-quarantine for 14 days and closed the border to all foreign nationals arriving from that country. The same rules were soon applied to persons who had been in Iran, South Korea and Italy. During this time, the Australian States and Territories initiated testing and contact tracing regimes, while hospital intensive care and ventilator capacities were ramped up across the country. From 16 March 2020 all travelers arriving in Australia from any destination were required to self-isolate for 14 days and on 20 March 2020 the national border was entirely closed to non-residents and non-citizens. (9) State borders were also closed to Australian citizens within Australia, and only exempt travelers were allowed to enter. The germane example is that of Western Australia, which

closed its borders at midnight on 5 April 2020 pursuant to the Quarantine (Closing the Border) Directions, issued under the Emergency Management Act 2005 (WA) by the Commissioner of Police and State Emergency Coordinator... The Directions prohibit entry to Western Australia of anyone who does not qualify as an "exempt traveler", a category that includes, for example: military, judicial and government officers; members of the Commonwealth Parliament and their staff; invited health and emergency service workers; transport, freight and logistics workers; fly-in-fly-out mine workers; and people granted entry on compassionate grounds. The Direction allows for conditions of entry to be imposed on any exempt traveler, including requirements as to quarantine. Putting to one side those categories of exempt traveler, and anyone benefitting from the residual discretion to permit in other exceptional circumstances, the Direction amounted to a "hard" border closure - that is, non-residents were not given the option of undertaking self-quarantine or entering hotel quarantine, even at their own expense, in order to earn the right of entry. (10) Based on evidence provided by epidemiological and public health experts, these border closures proved to be critical in preventing the spread of COVID-19 at the state and national levels. (11) As of early January 2021, the total number of cases in Australia was 28,595 and the total number of total deaths was 909. (12) As a fraction of the total population, the number of total deaths is around 0.004 percent. Similarly, as of early January 2021, the number of cases in Western Australia was 875 with only nine deaths, or 0.00035 deaths per 100 inhabitants. In contrast, in New South Wales and Victoria, the two States that decided not to close their borders, (13) and their combined number of cases were 25,417 with 874 deaths, which is significantly higher, even given their higher population density relative to the other States.

In the United States, state-imposed restrictions in response to the COVID-19 pandemic were also introduced through emergency measures intended to control the spread of the pandemic by curtailing the right to interstate travel. Some governors tightened their borders, but all stopped short from introducing hard border closures, opting instead for quarantine measures. (14) For example, Texas Governor Greg Abbott signed executive orders imposing a fourteen-day mandatory self-quarantine on travelers coming to Texas from hotspots. (15) While these state interventions seem to violate the essence of the federal compact in the United States, in comparison, the Governor of Western Australia went further, imposing hard border closures that prevented people from entering into the State. Each State and Territory developed their own set of entry requirements. (16) Intra and interstate controls reflected the latest evidence of community transmission within each jurisdiction:

Replicating subnational border closures during the spanish flu, Tasmania (March 19) and Northern Territory (March 21) were the first to implement hard border closures. The closures refused entry to the state/territory even for some of its residents. such closures were not recommended by the AHMPPI [Australian Health Management Plan for Pandemic Influenza], and yet on March 24, South Australia also closed its borders, Queensland followed on March 25, and Western Australia on April 6. The only states with no hard border closures are the most populous, New south Wales and Victoria, despite both having higher community spread than the other states/territories combined. Although not closed they are effectively enclosed (to other states but not to each other) given closures and domestic travel bans elsewhere. Internal border closures were not publicly opposed by the Commonwealth government. This creates an impression of Australia protecting itself against international outsiders as well as the rest of Australia protecting itself against the 58 percent of Australians who live in New south Wales and Victoria. (17) In contrast, the united states did not close neither its federal nor state borders, although some restrictions have been implemented at both levels. (18) As of 10 January 2021, the united states has 21,761,186 confirmed cases and 365,886 deaths. That is a death rate of around 0.1115 percent, 28 times higher than that in Australia. hile there are important geographic and demographic differences between the two counties, (19) a critical question still emerges, namely, whether pandemic state border closures similar to those seen in Western Australia can be implemented as a first line of defense in the united states.

Historically, there were hard state border closures--but only briefly. For example, Texas closed its border with Louisiana following reports of yellow fever in New orleans:

[O]n or about the 31st day of August, 1899, a case of yellow fever was officially declared to exist in the City of New Orleans... as soon as said first case was reported, the said William F. Blunt, Health Officer of the State of Texas, claiming to act under the provisions of Article 4324 of the Revised Civil Statutes, under the pretense of establishing a quarantine, placed an embargo on all interstate commerce between the City of New Orleans and the State of Texas, absolutely prohibiting all common carriers entering the State of Texas from bringing into the state any freight or passengers, or even the mails of the United States, coming from the City of New Orleans, and to enforce these orders he immediately placed, and now maintains, armed guards, acting under the authority of the State of Texas, on all the lines of travel from the State of Louisiana into the State of Texas, with instructions to enforce the embargo declared by him vi et armis, which instructions these armed guards are carrying out to the letter; that about six days later, he modified his order so as to permit the government of the United States to carry and deliver the mails, and also modified his order so as to permit persons and their baggage to enter the State of Texas, after ten days' detention at the quarantine detention camps established by him, and after fumigation of their baggage; but that he now maintains, and announces his intention to maintain indefinitely his absolute prohibition of all interstate commerce between the City of New Orleans and the State of Texas... (20) Note however, that the 1899 hard border closure lasted only for six days and was replaced by a state-run quarantine regime. Notwithstanding, Louisiana challenged the border closure arguing that it was unnecessary to protect public health and that it was designed to benefit cities in Texas at the expense of commerce with New Orleans. (21) The Court decided that it did not have original jurisdiction to hear the case. (22)

The topic of subnational borders has received little attention in the social sciences; (23) the same can be said about the role of subnational borders in contemporary research on federalism. (24) In fact, some have suggested that such borders are no longer relevant. For...