Hawaii Hotels Are Ready To Put Tourists Under “House Arrest”
Last month, a Hawaiian COVID-19 Senate committee said they are examining using tracking devices on tourists under quarantine. Over the weekend, there were reports on Hawaii’s tough enforcement mechanisms under consideration. Apparently the hotels in Hawaii that remain open are happy to assist the government in essentially locking people in their room.
A recent report notes that 70% of hotels that remain open on the Hawaiian islands say they are willing to take part in a Hawaiian government policy that gives hotel guests a one-time key card. A report sent from the Hawaii Tourism Authority shows that of the 91 hotels asked about the policy, 63 agreed to follow it.
The policy encourages hotels to give guests a one-time key card at check-in. If the guest leaves and reports to the front desk for a new key card, the hotel will contact law enforcement. This is all for the sake of Hawaii enforcing its required 14-day quarantine for visitors and residents. Violating the quarantine is punishable by a $5,000 fine or a year in prison, if convicted. Hawaii has already arrested people for violating quarantine.
Essentially, the state is imprisoning visitors in hotel rooms to enforce its quarantine measure. While this is all done in the name of public health, it is a very questionable method. I think there is even an argument to be made that it is not legal.
Is This Legal?
In a 1999 Supreme Court decision (Saenz v. Roe), the court ruled that the right to travel embraces three concepts, two of which include traveling temporarily to another state. The court held that citizens have 1) a right to enter and leave another state and 2) the right to be treated as a welcome visitor while temporarily present in another state. Although the quarantine rules apply to visitors, the rule disproportionately impacts visitors. Obviously, it is hard to make the case that placing tourists under quasi-government detainment in a hotel is suitable treatment under that standard.
Naturally, the state will likely defend these actions under the encompassing protection of public health. Admittedly, courts have ruled that governments have more latitude during public health emergencies. In Saenz v. Roe, the court did hold that “states must establish a compelling interest to justify restricting the right to travel.”
But the court also said the state, “must show that they have chosen a narrowly tailored means to achieve that interest.” It is hard to argue that such a drastic measure meets the narrow specification as laid out by the court. This requires the government to use the least restrictive means in its adaptation of the law. Given that other countries have found other means to open travel, including testing on arrival, this seems to fall beyond the narrow scope the court requires.
As Hawaii examines further quarantine enforcement mechanisms, court battles are likely to occur. I understand the state’s desire to keep coronavirus off the island. But it reaches a point of ridiculousness when the state is considering enforcing the law by essentially imprisoning people in hotels. This is not acceptable, and clearly a case can be made to demonstrate it is not even legal. Hawaii should look to return to its “mahalo” spirit and stop trying to treat fellow Americans as criminals.