Last Friday, the partisan leadership at the U.S. Department of Justice in Washington claimed that it knew better than Gov. Mills what should be done in Maine in the COVID-19 pandemic. They argued to a federal court in Maine that Gov. Mills’ emergency order mandating a 14-day self-quarantine for out-of-state visitors was unconstitutional (which is rich irony, given that they have also argued in favor of banning altogether persons in affected countries from even entering the country to slow the virus’ spread).
Later the same day, U.S. District Judge Lance Walker rebuffed their efforts, finding: “The governor’s executive orders are informed by a desire to preserve public health in the face of a pandemic. Striking down the quarantine order would seriously undermine her efforts and, based on the current record, would effectively disregard the balance of powers established by our federal system.” The decision is preliminary, and so there is little doubt that the Justice Department will press its arguments, safe in the knowledge that they will not have to suffer the consequences if our parents, children and neighbors are infected by asymptomatic out-of-staters coming to Maine.
If today’s Justice Department had only considered its own prior actions, it would know better.
Over 30 years ago, Maine went to the U.S. Supreme Court to defend Maine’s ban on importing out-of-state bait fish. In Maine v. Taylor, Maine argued that importing bait fish threatened Maine’s unique and fragile fisheries. In that case, the Justice Department of President Ronald Reagan fully supported Maine. And, in an 8-1 decision, the Supreme Court agreed that Maine could ban the importation of out-of-state bait fish.
Maine was permitted to take these actions because the decision was based on scientific evidence that these imports were potentially lethal to Maine’s native fisheries. The court agreed with Maine that the “abstract possibility of developing acceptable testing procedures, particularly when there is no assurance as to their effectiveness, does not make those procedures an available nondiscriminatory alternative.”
If Maine could then completely ban the importation of out-of-state bait fish to protect the health of its fisheries industry, it certainly now can require out-of-state visitors to self-quarantine to protect the health of its citizens.
The political appointees of the Justice Department claim that Gov. Mills’ order – which mirrors similar orders in numerous other states – violates the privileges and immunities clause of the Constitution. But there is no privilege to infect people in other states, and there certainty is no immunity from COVID-19.
Gov. Mills’ proactive, protective procedures have held Maine to about 2,400 COVID-19 cases and 95 deaths, while on the other side of the Piscataqua River Bridge, nearly 1,900,000 Americans have contracted COVID-19 and over 108,000 Americans have died. As Judge Walker found, 22,000,000 people come to Maine each year.
Gov. Mills is balancing the health and safety of the 1,300,000 Mainers against a potential tsunami of infected visitors coming to Maine who may be infected and not even know it. Gov. Mills obviously wants to open “Vacationland” as soon as it is safe to do so. Maine has not banned anyone from coming here, but simply requires for now, until conditions improve, that visitors self-quarantine during the incubation period to prevent the spread of a deadly virus that has no treatment, no cure and no vaccine.
As Chief Justice John Roberts explained Friday night in a case upholding the California governor’s limits on gatherings applied to churches, the governor is the right person to make that tough call. “Our Constitution principally entrusts ‘the safety and the health of the people’ to the politically accountable officials of the states ‘to guard and protect.’ When those officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad,’ ” he wrote, and they “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
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