The government can restrict travel during an emergency, but it must ensure that any prohibitions are no more restrictive than necessary. Public officials must provide adequate notice of the restrictions and provide a hearing process that allows individuals who are impacted by such policies a fair opportunity to explain why they should not be subjected to the policy. And in no case may an executive order override the Fourth Amendment protections from unreasonable search and seizure.
The executive order signed today by the governor fails in several of these respects.
First, it doesn’t adequately inform someone if they are subject to it. The order offers a non-exhaustive list of places that people coming from are expected to self-isolate. How would someone coming from a place not listed in the order know if they need to self-isolate?
This order, like the governor’s previous order, is also vague on what constitutes an essential business activity. People coming from out-of-state for business purposes simply are not adequately informed if they are required to self-isolate.
Second, the order is unclear regarding what due process rights someone has to challenge a self-isolation requirement. Is there a hearing process for people who feel they are wrongly being required to self- isolate? The order is silent.
The claimed necessity of the order seems to be undercut by its exceptions. For example, it is unclear why someone coming to West Virginia from “areas with substantial community spread of COVID-19” to engage in essential business activities would be considered less of a threat to public safety than someone coming to visit a family member. Yet under the executive order, one is permitted to freely travel the state and the other is required to self-isolate.
Perhaps most troubling, the executive order threatens jail time for violation of the order when accompanied by an attempt to obstruct an officer enforcing it. This is absurd. Incarcerating someone the state believes may be a danger of spreading COVID-19 only puts other inmates, guards and jail staff in jeopardy. Custodial arrests should be prohibited unless absolutely necessary to prevent imminent and serious bodily harm to another person and only after all non-incarceration alternatives have been exhausted.
Finally, the executive order highlights China as a place with “substantial community spread” but fails to list other countries with much higher rates of infection and active cases of COVID-19. This increases the likelihood of anti-Asian discrimination that we’ve already seen around the country and the world.
While COVID-19 presents a serious threat to public health, we must not abandon our core principles of fairness and liberty. This order is overly vague and lacks due process protections. If enforced, it could create even greater public health concerns.