Despite the herculean job that Governor Gina Raimondo has done, she has been criticized for alleged violations of the Constitution for some Executive Orders. Ed Achorn of The Providence Journal, the ACLU, the State Republican Party, and veteran attorney John Grasso in an Op-Ed piece have criticized one or more of her actions. First of all, kudos to  them for  trying to call into question some of her actions since they are performing a vital function in preserving the constitutional rights of all of us. They may not be right, however, in citing her decisions as unconstitutional. A pandemic is an unusual situation and in a class of its own. Case law is yet to be developed in this novel situation. Reference, however, to analogous case law precedent may give an insight into whether the governor is acting within the law. 

Take the governor’s order to stop out of state automobiles to inquire whether they are staying in the state (and, if so, to self- quarantine for 14 days), or passing through. The United States Commerce Clause allows for free travel so the governor has aptly allowed free passage to another state without quarantine. Perhaps the closest precedent is the body of case law around random sobriety checkpoints where cars are pulled over to check for drunk driving. When police pull motorists over, they must have probable cause. The United States Supreme Court, however, upheld the legitimacy of these stops as non-violative of the Fourth Amendment of United States Constitution. (Personally, I think that the Fifth Amendment’s right to not incriminate oneself and Sixth Amendment right to counsel may come into play, however). The Supreme Court decided that the stops were only minimally invasive to drivers but are important to the state’s “grave and legitimate” interest in reducing drug driving. This rationale would apply for the public health and safety in a pandemic.

YET, Rhode Island Fourth Amendment protections are more expansive than that of the United States. According to the 2013 Governor’s Highway Safety Association, DUI checkpoints are illegal in RI, which is one of about a dozen states that treated random stops as illegal. Since that time these pull-over of vehicles are characterized as “mobile roadblocks” and, therefore, as a traffic stop. As long as the officer acts in accordance with certain guidelines preset by the state and following those guidelines, it is legal. The Governor has a clear-cut plan. The guidelines do provide for an advanced public notice of a checkpoint and it is set up in “problem” areas, i.e. borders, and are not an arbitrary selection process.

Another order involved the distribution of palms on Palm Sunday which was forbidden based on apparently transmission of the coronavirus on the surface of the palms. This prohibition brushed up against the First Amendment, i.e. freedom of religion. Any potential constitutional infirmity was averted when state religious leaders agreed to the prohibition. Other states avoided a problem by not banning services but posting notices for self-quarantine on parked cars at Church congregant settings. Cellphone tracing almost became a problem but the Governor ‘walked the line” by making the cellphone tracing program “voluntary” and information must be only for public health purposes.
So far, so good.

Arlene Violet is an attorney and former Rhode Island Attorney General.