COVID-19: Federal Travel Restrictions and Quarantine Measures

COVID-19: Federal Travel Restrictions and Quarantine Measures

Legal Sidebari

COVID-19: Federal Travel Restrictions and
Quarantine Measures
Updated May 28, 2020
In response to the ongoing Coronavirus Disease 2019 (COVID-19) pandemic, the federal government has
taken several actions to deter persons with potential COVID-19 infection from entering the country. This
Legal Sidebar examines the legal authorities underlying two categories of these actions: First, restrictions
on the entry of many non-U.S. nationals (aliens) who recently have been physically present in mainland
China, Iran, much of Europe, and Brazil; and second, quarantine requirements imposed on all persons
entering the United States, regardless of citizenship status. A separate Sidebar discusses additional actions
the federal government has taken to restrict the movement of foreign nationals through ports of entry on
the land borders with Canada and Mexico.
Entry Restrictions
To deter the entry of aliens into the United States who may have been exposed to COVID-19, President
Trump has invoked his authority over alien entry under Section 212(f) of the Immigration and Nationality
Act (INA). That provision allows the President to “suspend the entry of all aliens, or any class of aliens”
whose entry he “finds . . . would be detrimental to the interests of the United States.” Under this authority,
President Trump has issued several proclamations to restrict the entry of aliens who were recently present
in countries affected by COVID-19.
A Proclamation on January 31, 2020, generally suspended the entry of any foreign national who had been
in mainland China at some point within the prior 14 days. But lawful permanent residents (LPRs), most
immediate relatives of U.S. citizens and LPRs, and certain other groups, such as some airplane and ship
crew members, are exempt from this restriction, as are those with prior presence in Hong Kong or Macau.
On February 29, 2020, President Trump issued a second Proclamation that similarly suspends the entry of
any foreign national who has been in Iran within the prior 14 days, in addition to making minor
amendments to the earlier Proclamation. In March 2020, President Trump issued two Proclamations
imposing the same restrictions on foreign nationals who have been in the Schengen Area of the European
Union, Ireland, or the United Kingdom within the prior 14 days. On May 24, 2020, the President issued
another proclamation invoking Section 212(f) to restrict the entry of the same categories of noncitizens
from Brazil. To be clear, none of the restrictions in these proclamations applies to U.S. citizens, LPRs,
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most immediate relatives of U.S. citizens, and certain other groups specifically exempted in the
proclamations.
Separately, a proclamation that took effect on April 23, 2020, suspends the entry of aliens on immigrant
visas for 60 days for the stated purposes of protecting Americans from job competition during the
economic recovery and reducing strain on the domestic health care system. This last proclamation would
appear to have limited impacts in the near term because the U.S. Department of State had already
suspended most immigrant visa processing around the world. Further, among other limitations and
exceptions, the proclamation does not apply to the spouses or children of U.S. citizens, to health care
professionals or EB-5 investors, or to aliens who already held immigrant visas as of the proclamation’s
effective date.
While these proclamations appear to be the first times Section 212(f) has been used to control the spread
of a communicable disease, the provision was previously invoked to restrict foreign travelers from
coming into the United States. Section 212(f) earlier provided the legal basis for the Trump
Administration’s imposition of the so-called “travel ban” on certain foreign nationals from designated
countries. In the context of a challenge to that invocation of Section 212(f), the Supreme Court held that
the provision “exudes deference to the President in every clause” and gives him mostly unfettered
discretion to decide “when to suspend entry,” “whose entry to suspend,” “for how long,” and “on what
conditions.” In light of the deference afforded to the President’s determinations over these matters,
coupled with the amount of evidence demonstrating the communicability of COVID-19, it seems unlikely
that a court would find that the current Proclamations exceed the scope of the President’s authority under
Section 212(f).
Quarantine and Isolation
The Administration’s January 31, 2020, Proclamation also directed the Secretary of Homeland Security
“to regulate the travel of persons and aircraft to the United States to facilitate the orderly medical
screening and, where appropriate, quarantine of persons who enter the United States and who may have
been exposed to the virus.” To this end, on February 2, 2020, the U.S. Department of Homeland Security
(DHS) imposed screening and quarantine rules for persons—including U.S. nationals, LPRs, and their
immediate family members—who arrive in the United States within 14 days after having been in
mainland China. Those persons traveling by air must arrive at designated airports where they are to be
screened. As the entry restrictions described above were expanded beyond China, DHS imposed similar
requirements for air travelers who were recently present in Iran, the majority of European countries, and
Brazil, and has also increased the number of designated airports to 15. Screened persons are to be taken to
a medical facility for isolation and treatment if fever, cough, or difficulty breathing is detected.
Asymptomatic persons are generally to be held under federal quarantine for 14 days from the time they
left mainland China if they visited Hubei Province. But asymptomatic persons whose recent travel did not
include Hubei Province are asked to self-quarantine for 14 days. State and local health authorities are to
provide oversight of individuals who self-quarantine.
Authority for these quarantine rules comes from Section 361 of the Public Health Service Act, which
authorizes the U.S. Department of Health and Human Services (HHS) to promulgate and enforce
regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases
from foreign countries into the States or possessions, or from one State or possession into any other State
or possession.” Besides authorizing the apprehension and examination of “any individual reasonably
believed to be infected with a communicable disease in a qualifying stage” who is “moving or about to
move from a State to another State,” Section 361 also authorizes the apprehension and quarantine of
persons who are not engaged in interstate travel, but are reasonably believed “to be a probable source of
infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a
State to another State.” To facilitate these quarantine requirements, HHS promulgated an interim final

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rule, effective February 7, 2020, requiring airlines with flights arriving in the United States to transmit to
HHS’s Centers for Disease Control and Prevention (CDC) identifying information about passengers or
crew who may be at risk of exposure to communicable disease.
In addition to federal quarantine authority, states may quarantine or isolate persons as public health risks
using their police powers. State mandatory quarantine laws vary, with some implemented through public
health orders issued by state health departments, and others effectuated through court orders authorizing
the detention of an individual upon some evidentiary showing that the person poses a public health risk.
As discussed in this Sidebar, some states have also imposed “stay-at-home” orders under this same
authority.
Possible Constitutional Challenges to Quarantine and Isolation Orders
Because quarantine requirements involve a deprivation of a person’s liberty to move freely, they have
occasionally been challenged on constitutional grounds. Specifically, the Supreme Court “repeatedly has
recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection.” Accordingly, quarantine measures may be challenged as violating the
Constitution’s substantive or procedural due process protections.
Substantive due process challenges center on whether a governmental action “is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience,” without regard to “the
fairness of the procedures used to implement” the action. Recent challenges to quarantine and isolation
for public health reasons have borrowed from substantive due process precedents involving involuntary
commitment. In that context, substantive due process challenges question whether the government has set
forth an adequate justification to support the deprivation of liberty effected by a quarantine policy (a type
of challenge that might also be viewed through an equal protection rather than a due process lens). In
either case, a substantive due process challenge to quarantine policies affecting those suspected of
COVID-19 seems unlikely to succeed given the degree of public health risk posed by the virus. Courts
have recognized that expeditious actions by government officials are frequently required to protect public
health or safety, and have been reluctant to find substantive due process violations even if those actions
are found to be erroneous after the fact.
There might also be concerns as to whether a quarantine policy satisfies the Constitution’s procedural due
process requirements. These requirements concern whether the process attending a particular deprivation
by the government—in this case the restraint on liberty during the quarantine period—is fair. The degree
of protection required by procedural due process is a “flexible” concept, requiring an examination of the
private interests at stake; the risk of an erroneous deprivation of such interest and the probable value of
additional safeguards; and the government’s interests. In the context of state action, the Supreme Court
has said that the Due Process Clause typically “requires some kind of a hearing before the State deprives a
person of liberty,” but has also held that the “necessity of quick action by the State or the impracticality of
providing any predeprivation process” may mean that a postdeprivation remedy is constitutionally
adequate. Here, the government may argue that the contagiousness of the COVID-19 virus may make
predeprivation process impractical before requiring the quarantine of a person suspected of COVID-19
infection.
In 2014, a federal district court applying this standard in the context of a Friday-to-Monday quarantine of
a nurse who had recently been in contact with Ebola patients found that the lack of a predeprivation
hearing was not a clear violation of due process because quarantine is “necessarily prophylactic and
peremptory.” However, the court noted that the relatively short duration of the quarantine (80 hours) also
factored into its conclusion. Moreover, to the extent that postdeprivation procedural due process claims
may be made, government actors may still enjoy qualified immunity to civil liability if the action “does

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not violate clearly established statutory or constitutional rights of which a reasonable person would have
known.”

Author Information

Edward C. Liu

Legislative Attorney

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