Governors Enforcing Restrictions at State Borders to Stop the Wuhan Virus

Actions politicians and pundits should keep in mind in the future

By Andrew R. Arthur on April 16, 2020

Topic Page: Covid-19 and Immigration

  • Restrictions have been placed on the interstate travel of certain individuals into Florida, Texas, Rhode Island, Delaware, and Maine by the governors in those states, to curb the spread of the Wuhan virus.
  • Residents of Kentucky have been instructed by the governor of that state not to leave, except for specified purposes, for the same reason.
  • Those restrictions demonstrate that borders matter, and provide a lesson for those who have been critical of federal enforcement of the immigration laws of the United States in the recent past.

In the not-so-distant past, there was a strong reluctance from individuals in certain quarters to enforce our national borders. That was then. Now, several states are insisting on enforcing their own borders, to prevent the spread of the Wuhan virus. Those state restrictions provide a lesson for immigration debates in the future.

Way back, during the humanitarian and national-security disaster at the Southwest border in July 2019, Rep. Ilhan Omar (D-Minn.) suggested that the United States government should consider abolishing U.S. Customs and Border Protection (CBP) — the government agency that is charged with enforcing the customs and immigration laws at the border. Not that she was alone.

In a December 2018 article in Salon captioned "Abolish ICE? That's not enough: Border enforcement needs radical change", Amanda Marcotte asserted:

The entire way that the southern border is managed needs to be radically changed. No matter how much Trump bellows about it, the border has almost nothing to do with crime and keeping it out. It's about dealing with fellow human beings who need our care and compassion, and our systems must be changed to reflect that reality.

Similarly, in a July 2019 post, my colleague Dan Cadman noted that then-Democratic presidential candidate Julian Castro had called for the decriminalization of illegal entry, a point that was taken up by the Speaker of the House, Rep. Nancy Pelosi (D-Calif.). As Cadman explained, the criminal charge for illegal entry in:

8 U.S.C. Sec. 1325 has been in existence, with minor amendments, since enactment of the Immigration and Nationality Act in 1952, and various predecessor statutes have made it a crime to illegally enter the United States since 1929. There are sound reasons for having such a statute on the books, although one wouldn't know it from the heated hyperventilating rhetoric on the left, which has chosen myopically to see it only through the filter of the present crisis of Central American illegal entries.

Subsequently, then-Democratic presidential candidate Sen. Bernie Sanders (I-Vt.), in his immigration platform (which for some reason is still available online notwithstanding his suspension of his campaign), stated:

The Trump administration's treatment of immigration exclusively as a criminal and national security matter is inhumane, impractical, and must end. As president, Bernie Sanders would treat border crossings as a civil matter, and fundamentally reform the government agencies tasked with enforcing immigration law to ensure our immigration agencies and officers are serving a humanitarian mission, not a law enforcement one.

I am not sure what sort of humanitarian assistance that the smugglers for Mexican cartels like Sinaloa, Jalisco New Generation, Gulf, and Los Zetas (or its rebranded offshoot, the Cártel del Noreste) need, but sure.

The erstwhile candidate continued:

Bernie believes that no human being is illegal. Unauthorized presence in the United States is a civil, not a criminal, offense, but President Trump and others before him have used a racist, outdated United States law that criminalizes border crossings to separate families and incarcerate immigrants fleeing violence and poverty. Punitive policies have been justified as a deterrent to migration, but in addition to being morally wrong, there is no evidence that these policies have served this purpose. The criminalization of immigrants has wasted billions of taxpayer dollars, dehumanized vulnerable migrants, and swelled already-overcrowded jails and prisons. Decades of unaccountable funding for militarizing our border has created a dangerous situation that has led to thousands of deaths along the border and at least seven children have died in the custody of the United States since last year. Bernie believes this is unacceptable.

There are a number of tendentious statements, as well as not a few half-truths, quarter-truths, and eighth-truths there, and the whole passage begs the question, but you get the gist.

Not to single the junior senator from Vermont out. Many Democratic representatives had linked the conditions under which aliens (and in particular alien minors) were being detained at the border to the president's immigration enforcement policies — notwithstanding the fact that they (and to some extent their Republican colleagues) were largely the ones responsible for those conditions, due to their failure to fund detention space. I explained all of this in a June 26, 2019, post captioned "If You Are Just Now Angry About UAC Detention, You Haven't Been Paying Attention".

And Joe Biden, the presumptive Democratic nominee for president, is not much better.

On his campaign website, he vows to discontinue the construction of barriers along the border, "[s]urge humanitarian resources to the border and foster public-private initiatives" ("such as faith-based shelters, non-governmental aid organizations, legal non-profits, and refugee assistance agencies"), and "demand transparency in and independent oversight over ... CBP's activities" (as though the agents who risk their lives defending the border are the ones at fault, not the migrants who enter illegally and their smugglers).

Not that Biden doesn't want more border security — the word "border" appears 26 times in his immigration proposal, usually in response to Trump-administration initiatives. He more or less limits his proposals on the issue to "smart, sensible policies that will actually strengthen our ability to [interdict illicit narcotics] by improving screening procedures at our legal ports of entry and investing in new technology", and by funneling money to Central America.

The candidate is somehow under the erroneous impression that: (1) even the best screening procedures are 100 percent effective against determined smugglers; (2) multi-billion-dollar criminal syndicates will simply give up the drug trade if, Pokémon-like, CBP officers "catch 'em all" at the ports of entry; and (3) migrants entering illegally are all legitimate asylum-seekers (which immigration-court statistics show is far from the case).

All of which leads me to my point. Although vast waves of immigrants entering illegally along the Southwest (international) border were recently treated by many as a humanitarian issue in which Border Patrol enforcement and barriers to entry were bad, many governors have started to recognize the value of their own state borders in responding to the Wuhan virus.

For example, on March 23, Ron DeSantis (R), governor of Florida, issued an executive order directing all those coming to the state via air from "an area with substantial community spread" (explicitly including New York, Connecticut, and New Jersey) to "isolate or quarantine" for 14 days upon arrival or the duration of their stay, whichever is shorter.

The state's Department of Health is directed to take necessary steps "to ensure the screening and appropriate isolation and quarantine" of those covered by the order, and to coordinate with aviation authorities, county and local officials, and law enforcement "to effectuate" the required isolation or quarantine. Violations carry a $500 fine, 60 days in jail, or both.

Checkpoints were also set up on I-95 to screen travelers from hot spots in the north, and on Interstate 10 for visitors from Louisiana (semis were not stopped). Those identified were required to provide travel and contact information. Similar screening is in effect at the state's airports.

Republican Governor Greg Abbott of Texas, on March 26, issued an executive order mandating a 14-day quarantine for those traveling to the Lone Star State through an airport in New York, New Jersey, Connecticut, and the city of New Orleans, with specified exceptions. During the specified period, "a quarantined person shall not allow visitors into or out of the designated quarantine location, other than a physician or healthcare provider, and cannot visit any public spaces."

Significantly, the press release accompanying that order explains:

Those entering Texas as their final destination from the designated areas will use a form from [the Texas Department of Public Safety (DPS)] to designate their quarantine location. DPS special agents will conduct unannounced visits to designated quarantine locations to verify compliance. Failure to comply with this order is considered a criminal offense that is punishable by up to a $1,000 fine, up to 180 days in jail, or both.

That form is not dissimilar to the federal I-94 form that most visitors from abroad must complete, but absent proof of some serious violations of the terms of the alien visitor's entry, there is no federal follow-up, announced or otherwise.

On March 30, Governor Abbott applied those restrictions to air visitors from California, all of Louisiana, Washington State, and the cities of Atlanta, Chicago, Detroit, and Miami, as well.

On March 28, Rhode Island Governor Gina Raimondo (D) ordered "[a]ny person coming to Rhode Island from another state for a non-work-related purpose", with specified exceptions, to "self-quarantine for 14 days", directed those living in Rhode Island and working elsewhere to work from home if they can, and "self-quarantine when not at work" if they can't.

To enforce that order, the National Guard and state police have set up four checkpoints close to the Connecticut border, at spots where persons who are not from the Ocean State are most likely to pass. Those officials "are stopping all passenger vehicles with out-of-state plates in an effort to track potential COVID-19 cases", and soldiers at those checkpoints are collecting contact information from visitors planning to spend more than a day in the state, which is relayed to the state's health department, kind of a mini-CBP for Rhode Island.

"Health department workers are calling those visitors to check on their well-being and if necessary to keep track of any contacts they have had," a follow-up that, again, DHS rarely if ever performs.

On March 29, Delaware Governor John Carney (D) ordered all individuals entering his state "from another state, and who is not merely passing through", with circumscribed exceptions, to "immediately self-quarantine for fourteen (14) days from the time of entry into Delaware or for the duration of the individual's presence in Delaware, whichever period is shorter." His terms of quarantine are fairly restrictive, including avoiding "sharing personal items" (whatever that means). Failure to comply is a criminal offense.

On April 3, Governor Janet Mills (D) of Maine issued an executive order that requires all those traveling to Maine, "resident or non-resident", to "immediately self-quarantine for 14 days or for the balance of 14 days dating from the day of arrival" unless they are engaging in defined "essential services". Under that order, visitors from "COVID-19 'hot spots,' including, among others, the cities of Detroit, Chicago and New York City" are "advised" to stay away from America's Vacationland.

Not that you could vacation there anyway, because "effective April 5, 2020, at 12:00 noon, all lodging operations and accommodations" were required to "close except to the extent of providing lodging for" a limited number of purposes, including "self-quarantine or self-isolation facilities as arranged by the State." (Emphasis added.) Maine is not even a "sanctuary" for other Americans, at least not without its express permission.

Ominously, that "Order shall be enforced by law enforcement, as necessary, including through means of community policing." Violations of the order can "be charged as a Class E crime subject to a penalty of up to six months in jail and a $1,000 fine."

Not all of those orders apply to outsiders. On March 30, Kentucky Governor Andy Beshear (D) "instructed" residents of his state not to leave except if required for employment, to purchase groceries, to seek medical care from a licensed provider, to care for "vulnerable persons", or if "required by court order." Those Kentuckians who found themselves out of the Blue Grass State when this order was issued (except for those covered by the exceptions) are required to self-quarantine for 14 days.

This power under which Governor Beshear acted (Kentucky Revised Statutes Chap. 39(a)) is much more general than the president's specific authority to impose travel restrictions on citizens and aliens. That authority is found in the much-derided (as it relates to aliens, at least) section 215 of the Immigration and Nationality Act (INA), subsection (a) of which is one of the bases for the president's early travel orders, as well as the more recent ones relating to China, Iran, the Schengen area, and the UK and Ireland. The governor's actions are a useful reminder for the next time the president utilizes this congressional grant of power.

These interstate travel restrictions at the state level serve the same purpose as immigration restrictions do at the federal level: to protect residents from a specific threat or threats (in these state cases, the introduction of a communicable disease). But, most importantly, they should give the president's detractors pause to reflect the next time they allege that his immigration initiatives are simply heartless endeavors imposed for xenophobic purposes.

Nothing against New York, but if I were a resident of Queens during the current national shutdown, I would probably prefer to pass the days in Portland, Maine, or St. Petersburg, Fla. Doing so, however, now comes with restrictions enforceable by law, just as entry by a foreign national coming to the United States has for more than a century.

Perhaps, after the current crisis has passed, politicians and pundits will have learned the lessons of the various state restrictions when enforcement of the INA is under public debate. I doubt it, but the fact is, and has been: Borders matter. All of them, and now more than ever.