The Department of Justice said today that Gov. David Ige’s 14-day travel quarantine to fight the spread of COVID-19 is unconstitutional and that Hawaii is “discriminating between Hawaii residents and out-of-state residents” by enforcing it.
The DOJ filed a statement of interest today in support a lawsuit challenging Ige’s use of his emergency powers during the outbreak, which includes the implementation of the interisland and out-of-state travel quarantines.
The lawsuit said that those not subject to the quarantines — namely residents who have not recently traveled — are free to move throughout the state, but those from out-of-state, even from a state relatively free of COVID-19, are unfairly required to stay in a designated location for two weeks.
The lawsuit cites a Nevada resident who owns and needs to maintain properties in Hawaii and a Hawaii resident who wants to travel to the mainland to visit her sick grandmother.
“Hawaii likely has transgressed the Constitution’s limits by effectively discriminating between Hawaii residents and out-of-state residents with respect to ‘the Privileges and Immunities of Citizens in the several States,’” the DOJ statement said. “It cannot impose measures that ‘in practical operation’ discriminate against out-of-state visitors, unless the measures are substantially related to ensuring public safety. … Hawaii’s sweeping self-quarantine mandate appears to be insufficiently tailored to ensuring public safety.”
The statement was submitted by Assistant Attorney General Eric Dreiband, Deputy Assistant Attorney General Alexander Maugeri and U.S. Attorney Kenji Price, of the District of Hawaii.
Ige ordered the 14-day travel quarantine for out-of-state arrivals starting March 26, and interisland travelers were included April 1. Those subject to the quarantines are required to confine themselves in a designated location for two weeks and can face up to one year in jail and a $5,000 fine is they break the quarantine. The interisland quarantine was lifted June 16.
“Reasonable measures designed to protect the public are not only appropriate, but responsible during a pandemic,” Price said in a statement. “However, there are bounds to the discretion our public officials have during times of crisis. Those bounds are shaped by constitutional safeguards, such as the right of Hawaii residents and persons who hail from other states to travel freely within this great country.”
Ige and state Attorney General Clare Connors are defendants in another lawsuit challenging the use of the 14-day quarantine. In response to the lawsuit, the Department of the Attorney General, on behalf of Connors and Ige, said the emergency proclamations that led to the travel quarantines were lawful.
That message was reiterated after the DOJ’s statement of interest.
“The Department of Justice’s statement of interest … is, like the plaintiff’s allegations, without merit. The Governor’s Emergency Proclamation for COVID-19 and the subsequent proclamations were properly and lawfully issued pursuant to the Governor’s statutory authority and his determination that an emergency exists due to the COVID-19 pandemic and the danger and threat it poses to Hawaii,” Krishna Jayaram, special assistant to the Attorney General, said in a statement today.