The fate of Hawaii’s plan to reopen its tourism industry remained unclear heading into the Fourth of July weekend, as a federal judge on Thursday declined to rule immediately on a request that would effectively open the state to tourists with no limits.

Harmeet Dhillon, a San Francisco lawyer who has been challenging state emergency orders responding to the COVID-19 virus, on Thursday presented her argument for a temporary restraining order aimed primarily at Gov. David Ige’s 14-day quarantine mandate.

The mandate requires people coming to Hawaii, including returning residents, to quarantine for 14 days upon arrival and is a central part of Ige’s strategy to contain the virus.

United States Federal Building in downtown Honolulu. Anthony Quintano/Civil Beat/2017

On Thursday morning, Dhillon and Hawaii Attorney General Clare Connors debated the merits of Dhillon’s request before U.S. District Court Judge Jill Otake. The case appears to turn on what legal standard the court will apply when assessing whether an emergency order restricts a fundamental right protected by the U.S. Constitution.

Both lawyers agreed that the right to travel is a fundamental right under the Constitution. And governments usually face an exceptionally high bar when adopting and enforcing laws that restrict such rights.

Federal courts have given government officials more leeway when adopting emergency orders responding to the COVID-19 crisis. But Dhillon argued that a governor’s power, even during an emergency, has boundaries.

“Of course, the governor has limits,” she said. “Those limits are at a minimum the United States Constitution.”

For her part, Connors turned to federal court decisions upholding state and local government actions related to COVID-19. These included a decision in May in which U.S. Supreme Court Chief Justice John Roberts articulated a position on such powers after a San Diego County church challenged California Gov. Gavin Newsom’s order restricting large gatherings. The court rejected the church’s argument that the order improperly infringed the right to practice religion.

In a concurring opinion, Roberts said state and local officials have the power to impose restrictions to protect the public health, even when fundamental rights are implicated.

“Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘un-elected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people,” Roberts wrote.

Dhillon argued Roberts’ opinion was merely a concurring one and thus not an opinion of the full court that would establish precedent.

Dhillon also argued that Hawaii’s relatively small number of COVID-19 cases and related deaths shows there was no need to impose restriction. Connors countered that the low numbers were the result of the very policies that Dhillon was challenging.

The action to lift Hawaii’s quarantine order was brought by four people with connections to the state who said Ige’s order infringed upon their fundamental rights. Holly and Timothy Carmichael are residents of California and trustees of a trust that owns a condo on Maui. Brooke McGowan is an Oahu resident with family on the mainland. Russell Hirsh lives in Nevada and owns a house in Hilo.

Attorney General Clare Connors COVID19 press conference.
Attorney General Clare Connors on Thursday defended Gov. David Ige’s 14-day quarantine in federal court. Cory Lum/Civil Beat/2020

The plaintiffs challenged the law under several principles of the U.S. Constitution, chiefly the Fifth Amendment’s due process clause, the Fourteenth Amendment’s equal protection clause and the right to travel, which isn’t explicitly spelled out in the Constitution, but established as a fundamental right in U.S. Supreme Court cases.

Although the suit challenged other aspects of Ige’s executive orders, such as state-at-home orders which have since been lifted, the central issue still in effect is the quarantine.

Dhillon agreed to not pursue a challenge to the law restricting short-term vacation rentals after Connors pointed out that the laws are imposed by counties and not the state.

A victory for the Carmichaels, McGown and Hirsh would essentially upend the state’s scheme for a methodical process to reopen tourism, which would be coupled with extensive testing of visitors.

That plan, which Ige announced June 24 and is set to go into effect on Aug. 1, calls for maintaining the quarantine but allowing people to sidestep it by showing they tested negative for the virus within three days of traveling to Hawaii.

Otake said she would try to issue an order by the end of the day Thursday, but had not done so by the close of business.

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