On the Constitutionality of Hard State Border Closures in Response to the COVID-19 Pandemic.

Abstract

I investigate the constitutionality of hard state border closures in the United States as a prophylactic response to a pandemic. This type of border closure prevents people from entering a State, except for exempt travelers, a category that includes, for example, military, judicial and government officers, and people granted entry on compassionate grounds. Those allowed to enter usually have to then go through a quarantine regime before being released into the community. During the COVID-19 pandemic, no State has attempted such closures. However, epidemiological experts suggest that, in comparison to other border and non-border measures, such closures are more effective. Given the World Health Organization prediction of more pandemics in the foreseeable future, it is imperative that the constitutionality of such hard closures is investigated. I use structural analysis to argue that a recent challenge to hard border closures in Australia suggests that, under a strict scrutiny review, the Supreme Court is likely to uphold such closures in the United States. While actual implementation requires investigating issues that go beyond a constitutional analysis, these findings highlight the need for a wider conversation around a federal goldilocks zone when responding to the next pandemic.