Can Biden restrict travel to Florida?

President Rip Van Biden apparently hasn't had the time to read the Constitution after awakening from his four-year slumber.

He has now threatened to impose a "travel ban," restricting the rights of people to travel in and out of Florida.  Should he attempt to pursue this policy, it will be through executive order, the only manner of governance with which he is apparently familiar.  The order would also presumably exempt illegal aliens since they have a free ticket for ingress into all fifty states.

Before he takes pen to paper, the president should have a look at the U.S. Constitution.  The Privileges and Immunities Clause of Article IV, Section 2 states that "[t]he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."  This constitutional provision would make any travel ban per se unconstitutional.  For just under two hundred years, freedom of movement from one state to another has been recognized as a fundamental constitutional right pursuant to the Privileges and Immunities Clause.  In Corfield v. Coryell, decided by the U.S. Supreme Court in 1823, the Court held that the privileges and immunities enjoyed by citizens of one state of which they cannot be deprived by other states include "the right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuit or otherwise."

In addition, the right to travel within the United States has been recognized as a liberty interest that no person can be deprived of without due process of law under the Fifth Amendment to the Constitution.  In 1958, in Kent v. Dulles, the U.S. Supreme Court overturned the decision of the State Department to deny a passport to a citizen sympathetic to the Communist Party.  The Court based its decision on the principle that the right to travel within and across frontiers is a fundamental part of our liberty protected by the Fifth Amendment.

Further, it is now eighty years since the Supreme Court also affirmed the constitutional right of interstate travel pursuant to the Commerce Clause.  In Edwards v. California, the Court struck down a California law, the infamous anti-Okie law, that made it a crime to assist in bringing migrants into the state.  This decision was rendered pursuant to the so-called dormant Commerce Clause, which makes it illegal for states to excessively burden interstate commerce.  While Edwards reaffirmed that the federal government alone has the Commerce Clause power to regulate interstate commerce, using the decision as a basis for turning Florida into Guantanamo Bay will hardly fly.  The power to regulate interstate commerce does not give the federal government the power to destroy a state's commerce.

All this said, it is obvious that the administration's threat is nothing more than a scare tactic aimed at undermining our principles of federalism.  While the federal government is empowered under the Commerce Clause to regulate interstate travel, the gun being held to Governor DeSantis's head is intended to force him to legislate in accord with White House beliefs.  The problem there is that legislating over masks, quarantines, and the like is uniquely a matter of state, not federal law.  It is well settled that states' police power gives them the right to legislate public health and the safety of their citizenry.  Thus, each state has for the past year or so made its own judgments about lockdowns, quarantines, and essential services based largely on the incidence and location of the affected populace within the particular state.

What Biden is attempting to do is usurp states' rights by misusing the federal government's constitutional power to regulate commerce.  He is not, however, trying to regulate commerce; he is threatening to destroy one state's commerce if it does not surrender its power to regulate the health and safety of its citizens.

Haven't our constitutional rights been dismantled enough already by pandemic paranoia?

Image: Gage Skidmore via Flickr, CC BY-SA 2.0.