New York Judge Denies Injunction for Individual Claiming Travel Form Requirement Unconstitutional

On Monday, Judge Brian M. Cogan of the Eastern District of New York denied a motion for a preliminary injunction by an individual who argued that Gov. Andrew Cuomo’s required form for travelers entering New York state from overseas violates constitutional provisions.

Cuomo modified an executive order in September 2020 to include a requirement, among other things, that people traveling into the state from a country with a CDC Level 2 or 3 health advisory must fill out a form indicating whether they are traveling from a country with moderate to high rates of COVID-19, whether they recently have experienced COVID-19 symptoms, and whether they recently have tested positive for the disease, the court explained.

The plaintiff, Yoel Weisshaus, claimed that after traveling abroad in November 2020, he arrived at John F. Kennedy International Airport, where he was given a CDC pamphlet about risk of COVID-19 exposure while traveling, asked by federal officials if he had any symptoms of the disease, and was barred from leaving the customs screening area until he filled out the required traveler form. Concerning these alleged actions, the court explained, the plaintiff “asserts a litany of claims under these provisions, citing violations of his right to interstate travel, his freedom of international travel, his right to avoid disclosure of certain personal information, and his right to be free from an unlawful detention.”

For an injunction to be in order in this case, there must be a public interest that would favor granting the injunction and the plaintiff must show that there has been “irreparable harm” done unto him, both of which the judge said do not exist.

“Outside the First Amendment/free exercise context, courts have overwhelmingly concluded that enjoining state health measures during this pandemic is not in the public interest. … In New York State alone, COVID-19 has claimed over 38,000 lives. It is spread through airborne transmission, and travel can further the spread.” The judge does note that extra restrictions put into place because of the COVID-19 pandemic can “come at a great cost,” citing that, in many other cases challenging COVID-19 regulations, “(m)any plaintiffs ‘b(ore) the very real risk of losing their businesses’ ” while this plaintiff “need only fill out a form before proceeding to his destination.”

Regarding the plaintiff’s claim of a Supremacy Clause violation, saying the executive order “subjected Plaintiff to extra screening in excess to the procedure and practices executed by Customs and Border Protection,” the judge said there is no way to show irreparable harm because “on a motion for a preliminary injunction, an alleged violation of the Supremacy Clause does not ‘trigger() irreparable harm per se because the Supremacy Clause is a structural provision of the Constitution that does not confer personal rights,’ ” and the harm in question would be a fine, which the judge said is not irreparable.

Further, concerning the plaintiff’s suggestion that he would not have been allowed to leave the airport if he had not filled out the form, the judge said that since the plaintiff did indeed complete the form and did not cite any instances of other travelers being denied entry for refusal to complete the form, he “cannot find that New York officials are preventing travelers from entering the United States.”

The judge explained that the rest of the plaintiff’s allegations — which claim constitutional right infringements of interstate travel, international travel, informational privacy, and substantive due process — do not establish irreparable harm nor a likelihood of success on their merits.

The plaintiff is represented by the Law Office of Eugene M. Lynch.