One of the most constitutionally and morally problematic responses to the coronavirus pandemic is that of Florida Gov. Ron DeSantis in strongly dissuading residents of certain states from entering Florida’s territory.
This newly Draconian reaction comes from the same governor who arguably underreacted by keeping his state’s beaches open longer than many critics said was wise. So, after many thousands of irresponsible beachgoers from all over the country found their way to open Florida beaches, DeSantis now tells innocent people from Louisiana, New York, New Jersey, and Connecticut that they cannot enter his state at all unless they self-isolate for 14 days.
The order itself stops just short of obvious constitutional transgressions. Yet, the questions raised by the order may soon come into play across the country. The moral issues involved in DeSantis’s order also are important.
The constitutional issues were addressed in the 1999 Supreme Court case of Saenz v. Roe, one of the favorite cases of libertarian-leaning constitutional law nerds. It involved an effort by California to provide less in welfare benefits to newcomers than to long-term residents of the state.
As the case syllabus concisely explained, the court reaffirmed a constitutional “right to travel [that] embraces three different components: the right to enter and leave another state; the right to be treated as a welcome visitor while temporarily present in another state; and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state.”
This “right to travel” stems from the 14th Amendment’s guarantee that no state can “abridge the privileges or immunities” of any U.S. citizen from another state, nor can it “deny to any person within its jurisdiction the equal protection of the laws.”
As the court explained, again from the syllabus, “Since the right to travel embraces a citizen’s right to be treated equally in her new State of residence, a discriminatory classification is itself a penalty.” The 14th Amendment, it said, “does not tolerate a hierarchy of subclasses of similarly situated citizens based on the location of their prior residences.”
By singling out residents of just four states for criminally enforceable strictures, DeSantis manifestly is creating a “hierarchy of subclasses” based on their “prior residences.” He is materially infringing the “right to enter and leave another state [and] the right to be treated as a welcome visitor while temporarily present.”
But two factors probably save DeSantis’s orders from unconstitutionality. The first is that the strictures are for a rather limited time of just two weeks. The second is that they come amid a declared state of emergency. Clearly, though, he is flirting with the constitutional line.
Morally, too, DeSantis is in a gray area. What if a family from Louisiana has already tested negative for the coronavirus but wants to escape the world’s fastest-spreading virus locale because their child has severe asthma and they have family in Florida willing to put them up? If they have tested negative, they are far less likely to import the virus to Florida than are nontested people from, say, Ohio. DeSantis’s order makes the Louisianans liable for hassles from law enforcement and possibly criminal penalties, whereas the Ohio residents can roam free.
How is it even remotely moral to try to keep them from their family members in Florida?
None of these decisions is easy, and DeSantis clearly does have responsibilities primarily to his own state’s residents. The point here is not to condemn him but to suggest that he and other governors should take these sorts of questions into account. In times of crisis, overreactions, as well as underreactions, can prove deadly.
