DOJ Files Statement of Interest Challenging the Constitutionality of Hawaii Governor’s COVID-19 Order that Effectively Discriminates Against Out of-State Residents

Washington, DC - The Justice Department Tuesday filed a statement of interest in Hawaii federal court in support of a lawsuit filed by Nevada and California residents who own property in Hawaii challenging a measure by Gov. David Ige in response to COVID‑19 that mandates a 14-day self-quarantine for individuals entering Hawaii.

Under the governor’s latest COVID-19 order, the Hawaii residents who have remained in the state since the onset of the pandemic — regardless of whether they have self-quarantined within the last 14 days or ever — are free to travel between the islands, maintain and freely enjoy their properties, and engage in commerce with certain businesses. Out-of-staters such as the plaintiffs, by contrast, must self-quarantine in a single location for two weeks before they can share in the same freedoms available to most Hawaii residents.

The statement of interest is part of Attorney General William P. Barr’s April 27, 2020 initiative directing Assistant Attorney General Eric Dreiband for the Civil Rights Division, and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic. 

“The United States Constitution requires government to protect the privileges and immunities of all citizens in our nation,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division. “These privileges and immunities include the right of Americans to travel freely anywhere in our country, and state governments cannot limit the right of out-of-state Americans to travel to their state unless doing so is substantially related to protecting the public safety. The Department of Justice remains committed to defending the constitutional rights of all Americans no matter where they live. The department will continue to be especially vigilant of any infringement on the right to travel that unduly harms the ability of Americans to earn a living and support their families.”

“Reasonable measures designed to protect the public are not only appropriate, but responsible during a pandemic, and the Constitution does not bind the hands of state officials who, through careful thought and deliberation impose such measures,” said Kenji M. Price, the U.S. Attorney for the District of Hawaii. “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. As our state leaders consider the way forward with Hawaii’s 14-day quarantine, it is my hope that they will pay due consideration to the protections embedded in the Constitution, so that visitors from far and wide may experience the Aloha spirit that makes Hawaii such a special place.”

Starting in March, the Governor of Hawaii issued a series of proclamations in response to the COVID-19 pandemic. The latest one, his Ninth Supplementary Proclamation, maintains a mandatory 14-day self-quarantine for anyone entering Hawaii. Those subject to this self-quarantine mandate must confine themselves at a single “designated quarantine location” within Hawaii and not leave there for two weeks (unless they are departing from the state). Anyone who violates the self-quarantine mandate faces up to a year in jail and a $5,000 fine. Those in Hawaii “not subject to the traveler self-quarantine,” by contrast, are free to travel throughout the State — including between islands — for a variety of purposes. 

In addition to contributing to the harm suffered by Hawaii’s tourism industry, the self-quarantine mandate precludes out-of-staters who own properties in Hawaii from taking advantage of opportunities available to Hawaii residents who have not left the island since the onset of the pandemic. 

In its statement of interest, the United States explains that Hawaii’s self-quarantine requirement effectively discriminates against out-of-state residents.  This effective discrimination, based on the evidence and argument presented thus far, appears to be inadequately tailored to further public safety and therefore does not comply with the Constitution. The statement of interest explains that it appears that a close analogue to Hawaii — Alaska — is able to protect public health through less restrictive means. Alaska, like Hawaii, has a low number of COVID-19 cases. Alaska, like Hawaii, is typically reached by airplane. Alaska, like Hawaii, imposes a 14-day self-quarantine mandate on those entering the State. But Alaska, unlike Hawaii, provides out-of-state residents with alternatives to the self-quarantine:  (i) they may produce test results showing they tested negative for COVID-19 shortly before departing for Alaska, (ii) they may test for COVID‑19 upon arrival in Alaska and self-quarantine in Alaska until they receive a negative test result, or (iii) they may provide evidence that they have tested positive for COVID-19 in the past and have recovered. 

Although Hawaii’s Governor may take reasonable steps to protect public safety during the COVID-19 pandemic, the governor must show that the effective discrimination against out-of-staters at issue here bears a substantial relationship to that goal. As of now, he has not done so.

The federal case is Carmichael, et al. v. Ige, Case No. 1:20-cv-00273 JAO-WRP.