[Cross-posted from CalMatters]

By Katherine Florey

Many Americans took advantage of May’s long Memorial Day weekend by venturing out of town for the first time in weeks, to gather with family or visit resorts. A few weeks later, COVID-19 cases began a vertiginous rise.

With attractions from Disney World to California wineries reopening, the summer vacation season seems to have fueled another surge.

From the start, travel within the United States has powered COVID-19’s ever-increasing reach – in contrast to many European countries, which contained the disease in part by restricting travel while planning carefully for its safe resumption. Vacation spots from Sun Valley, Idaho, to Myrtle Beach, S.C., have become COVID-19 hotbeds. Tourism has caused cases to soar in the South Lake Tahoe region, where – as is often the case with rustic travel destinations – hospital and ICU capacities are worrisomely limited.

As well as fueling the virus’s spread, travel makes containment more difficult. When exposure is local, contact tracers can follow up. After two hairstylists tested positive for COVID-19 in Missouri, the county health department was able to quarantine all 140 exposed clients for two weeks. Such careful tracing isn’t possible when visitors hail from far-flung locations. While more traffic in Las Vegas’s newly reopened casinos comes from California than Nevada, Nevada doesn’t track infections in out-of-state visitors.

Despite the issue’s importance, our current state and county patchwork of reopenings too often ignores existing patterns of travel. Worse, it creates new ones. People in still-closed communities who might otherwise have patronized local businesses have driven long distances to get a haircut or meet friends in a dine-in restaurant.

It doesn’t have to be this way. States have substantial constitutional latitude to restrict travel and other activities when necessary to control contagious disease, as the Supreme Court famously held in Jacobson v. Massachusetts. Although some authorities had cast doubt on Jacobson’s continuing viability, U.S. Supreme Court Chief Justice Roberts relied on it in rejecting a challenge to California’s pandemic-driven limits on religious services.

Historically, states have used quarantines to contain viruses geographically – and, amid COVID-19’s resurgence, many are rushing to impose them. But quarantines have limitations. They can degenerate into tit-for-tat animosity. As New York and Florida have traded places as COVID-19 hotspots, their governors have seemed all too eager to quarantine each other’s residents, sparking legal challenges. 

Maybe most damningly, quarantines often do not work. Enforcement is difficult; changing conditions can soon render them irrelevant. Some courts have signaled that, Jacobson ruling notwithstanding, their tolerance for long-lasting quarantines may not be unlimited. Usually, less blunderbuss measures are preferable.

First, reopening plans should acknowledge that activities that encourage travel increase risk. A destination restaurant is more likely to bring COVID-19 to a low-prevalence community than a diner filled with locals. Establishments that cater to out-of-towners should be priorities for enforcement of mask, distancing and capacity rules – both to make them safer and to discourage visitors looking for mask-free havens. Businesses should gather contact information from tourists where they can, and communities should plan for tracking infections that spread across county and state lines. 

Second, reopening plans and renewed closures alike should be regionally coordinated based on both existing travel patterns and new ones they may generate – a consideration too often lacking in plans like California’s, which evaluates counties mostly in isolation. A county with little COVID-19 nonetheless must exercise caution if community transmission is still rampant in neighboring areas. Conversely, reopening lower-risk businesses might make sense if keeping them closed will just drive residents to seek out services elsewhere.

Many countries successfully battling the virus have adopted comprehensive measures to limit travel. Some of these, such as the designation of “green zones” in some European countries, require more trust, compliance and centralized planning than is likely possible in the United States. Nonetheless, the United States should borrow the habit of thinking about COVID-19 in terms of its true geography, not political boundaries. After all, that’s how the virus operates too.

As part of a symposium entitled "One Toke Too Far: The Horizontal-Federalism Implications of Marijuana Legalization Symposium," my article "Budding Conflicts: Marijuana's Impact on Unsettled Questions of Tribal-State Relations," will appear in the Boston College Law Review (forthcoming 2017). (There seems to be an unwritten rule that every piece of marijuana-related legal scholarship must contain a pun.) 

Tribes are currently in an uncertain situation with respect to marijuana legalization. A December 2014 decision by the Department of Justice to deprioritize enforcement of federal marijuana laws against tribes as well as states prompted many tribes to revisit their policies toward marijuana. Some tribes opted to legalize marijuana for medical and/or recreational purposes under tribal law, while others went still farther by planning commercial marijuana enterprises. The Flandreau Santee Sioux Tribe in South Dakota, for example, hoped to launch the nation's first "marijuana resort," complete with a smoking lounge and a shuttle service for guests who wished to avoid driving under the influence. Other tribes occupied the opposite end of the spectrum. The Yakama Nation, which has maintained a strict policy against drugs and alcohol for decades, chose to strengthen its anti-marijuana laws in the wake of Washington's move toward legalization.

In many cases, tribes' efforts to go their own way on marijuana policy have sparked clashes with nearby states. The Flandreau Santee Sioux had to abandon their resort plans after they met with intractable opposition from state and federal authorities, who worried that non-tribal residents of South Dakota (where marijuana is illegal) would be lured onto the reservation. The Yakama Nation is currently engaged in litigation to stop Washington marijuana vendors from doing business on off-reservation lands where its members hunt and fish. Such jurisdictional conflicts are, of course, nothing new; they arise in the interstate context all the time. But they are exacerbated in the state-tribal context for two reasons: the tremendous uncertainty that exists about the proper scope of state and tribal regulation in Indian country and the absence of the formal and informal mechanisms - such as, to take perhaps the most important example, the Full Faith and Credit Clause - that help mediate comparable interstate friction. In my article, I discuss the reasons why state-tribal conflicts over marijuana may be particularly intense and suggest avenues for smoothing state-tribal relations, including clarification of tribes' regulatory authority and possible federal legislation that could draw on the experience of the Indian Gaming Regulatory Act while avoiding its mistakes. 

When tribes set their own marijuana policy, they can both express their own sovereign values and serve as useful "laboratories of democracy" in an era when attitudes and legal approaches toward marijuana are changing quickly.  Fully achieving these goals, however, will depend on finding better ways to resolve state-tribal policy disputes.