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Can New Hampshire really limit out-of-staters? Narrow, but not broad, restrictions do pass constitutional muster ENFORCEMENT ● BY CITIZENS COUNT
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s part of his new stay-at-home guidelines, Gov. Chris Sununu said that golf courses and campgrounds cannot serve out-of-staters unless they are members. These guidelines follow attempts by many other states to limit travel by out-of-state residents during the coronavirus pandemic. Some lawyers argue that limiting travel and commerce across state lines is unconstitutional, and KING, PERSONAL FINANCE, ENERGY judge agrees. at least one federal ONS, THE LATEST, ABOUTSununu’s TOWN However, order is limited in scope, which RISM, NEWS, CHARITABLE GIVING, MORE ONLINE makes it much more likely to pass constitutional muster. ORD As the governor “flexes” open areas of the economy, there might be more limits on Massachusetts travelers. Limits on out-of-staters in NH The coronavirus outbreak is much more severe in Massachusetts, and many New Hampshire residents — including the governor — have expressed anxiety about Bay Staters coming north. Even so, Sununu has said he cannot close the border to Massachusetts, turn Massachusetts residents away from state parks or ban Massachusetts residents from moving into summer homes. He said any of those acts would violate the commerce clause of the U.S. Constitution, which forbids states from interfering with or discriminating against interstate commerce. But the governor’s new guidelines place two limits on Massachusetts travelers. Golf courses and campgrounds cannot serve any out-of-state customer unless a customer is a member. Legal challenges to banning out-of-staters
There have been several lawsuits and lawsuit threats over travel bans in other states. Several weeks ago, New York Gov. Andrew Cuomo threatened to sue Rhode Island for pulling over drivers with New York license plates and forcing them to selfquarantine. In response, Rhode Island changed its policy to route all out-of-state drivers through checkpoints. Texas Attorney General Ken Paxton targeted Gunnison County in Colorado after the county ordered secondhome-owners to leave. Paxton called the order “patent discrimination against non-resident homeowners — including Texans who own homes in Gunnison County.” A federal court recently struck down an executive order banning most out-of-state travel in Kentucky. The order only allowed Kentuckians to travel out of state for work, essential supplies, health care, care for dependents or other vulnerable people, or a court order. Senior U.S. District Judge William Bertelsman wrote this violates “the basic right of citizens to engage in interstate travel.” Narrower limits look more legal Constitutional rights are not unlimited, however. As a famous example, the right to free speech does not cover shouting “fire” in a crowded theater. A narrowly written ban on out-of-state travel or commerce might be constitutional if it is also balanced by a compelling threat to public safety, like a disease outbreak. Judge Bertelsman’s Kentucky ruling noted that the travel ban might be constitutional with just “minor amendments.” As an example, Bertelsman pointed to Ohio’s travel ban, which focuses on travelers staying more than 24 hours. He also suggested “requests” and “guidance” are more constitutional than orders with harsh penalties.
Governor Sununu’s ban on out-of-staters at golf courses and campgrounds is much narrower than a statewide ban on outsiders, which means his ban is more likely to hold up in court. At a May 1 press conference, Sununu also said, “It’s really up to the facility to make sure that they’re adhering to the rules of the guidelines” and “we don’t have stay-at-home police that patrol the state.” While theoretically a facility could lose its license for violating the new stay-at-home guidelines — for example after letting out-of-staters golf — Sununu seems extremely reluctant to punish people. In other words, Sununu’s order seems more in line with the “requests” and “guidance” Bertelsman suggested in his ruling. Could there be more limits for out-of-staters in NH? Theoretically New Hampshire could choose to add more limits on out-of-staters as the economy reopens. Gyms and hotels might be likely candidates for in-state limits. Some states and foreign countries are already considering “travel bubbles” or “tourist corridors” that would allow travel for people to and from areas without coronavirus. Sununu suggested another option: Businesses could choose to refuse out-of-state customers on their own. Restaurants, hotels and other public accommodations cannot refuse customers based on age, sex, race, religion or other specific reasons, but “state of residence” is not one of those protected classes. That leaves the door open to businesses voluntarily turning away Massachusetts customers. This article is being shared by partners in The Granite State News Collaborative. For more information, visit collaborativenh.org.
Intervention won’t lead to economic recovery More government actions will make it harder to emerge from downturn GOVERNMENT INTERVENTION BY CHRISTOPHER MAIDMENT
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s the economic costs of the Covid-19 shutdown begin to add up and our state begins to reopen, it will become increasingly important for policymakers to start looking at ways to rebuild the booming economy we had just eight short weeks ago. New Hampshire has now received over 183,000 initial unemployment claims since March 15. Some businesses around the state are locking their doors for good, while others desperately hold on to what they’ve spent their lives building. Employees sit home, anxiously waiting to return to work safely. The shape of the recovery will depend mainly on the government’s actions moving forward. Government orders are solely responsible for this downturn, that much we know. The stay-at-home orders mandated businesses close, temporarily, in the name of public health and safety. These
orders ground our booming economy to a near halt and caused Great Depression levels on unemployment rolls. It will not be through government intervention that we recover from this disaster, though. Policymakers must be wary of well-intentioned policies that have unintended consequences. For example, an increased minimum wage at this time would undoubtedly put more money into a few pockets, but would leave many others empty. New hires and those able to earn employment would benefit. Their benefit would come at the expense of those unable to find jobs at the newly increased cost. These policies would undoubtedly hurt the very people it intends to help. The low-skilled and entry-level workers would remain on the sidelines. Cash-crippled businesses cannot afford an increase in the costs of doing business, which would prolong the recovery we all desperately need right now. Any added restriction or regulation to businesses would have a similar effect. It
sure sounds nice to be promised family medical leave insurance, mandatory paid sick time, or expanded workers compensation. Enacting these policies would make it more difficult, not less, to employ Granite Staters. Policymakers must instead focus their attention on areas where barriers can be removed or reduced. Legislators can repeal the employer tax increases set to take effect as a result of this crisis as a straightforward first step. Businesses should retain their hard-earned money and use it to revamp, reinvigorate and renew, instead of handing it to politicians and bureaucrats to squander. The government suspended many regulations during the virus. Legislators can and should repeal or modify these regulations, decreasing restrictions on enterprise. Allowing restaurants to continue take-out beer and wine sales, for example, removes a barrier to revenue that will grow our economy. Policymakers must examine more regulations to see if they prove to be an unnecessary hurdle that stifles growth.
Further, policymakers must examine licensing in the state at all levels. They should strive to reserve barriers to entry for only the most critical industries and services. No one wants to get operated on by an unqualified surgeon, but increasing restrictions for barbers, hairbraiders and estheticians doesn’t make sense. The government must get out of the way if it wishes to get the unemployed back to work. Removing barriers will afford the jobless more avenues to retain employment and attain the American dream. People across the state and country are hurting right now. It will be tempting for policymakers to lean into policies to help them, to care for them. The best thing the government can do to enable a strong recovery, though, is to get out of the way. Granite Staters are resilient – we can and will pull ourselves out of this depression. The government must allow us to do so. Christopher Maidment of Peterborough is a small business owner and candidate for state representative.
