17.3 Interstate Travel and Migration

The right to interstate travel and migration is a fundamental freedom protected by the Constitution. It ensures citizens can move freely between states, pursue opportunities, and establish residency anywhere in the nation. This right is essential for maintaining national unity and individual liberty.

Courts apply strict scrutiny to restrictions on interstate travel, requiring compelling government interests and narrow tailoring. The right stems from the Privileges and Immunities Clauses and Commerce Clause, safeguarding equal treatment of citizens across state lines and facilitating a cohesive national economy.

Right to Interstate Travel

Constitutional Protection of Interstate Travel and Migration

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• The U.S. Constitution protects the right of citizens to travel freely between states and to establish residence in any state
• The right to interstate travel and migration is considered a fundamental right, closely tied to the concept of personal liberty and freedom of movement
• This right is essential for maintaining the unity and cohesion of the nation, allowing individuals to pursue opportunities and engage with communities across state lines
• The right to interstate travel and migration is not explicitly mentioned in the Constitution but has been recognized by the Supreme Court as implicit in various constitutional provisions (Privileges and Immunities Clauses, Commerce Clause)

Strict Scrutiny of Restrictions on Interstate Travel and Migration

• Restrictions on the right to interstate travel and migration are subject to strict scrutiny, requiring a compelling governmental interest and narrowly tailored means
• This high level of scrutiny reflects the fundamental nature of the right and the importance of protecting individual liberty and freedom of movement
• To justify a restriction on interstate travel and migration, the government must demonstrate that the restriction is necessary to achieve a compelling state interest and that no less restrictive means are available
• Examples of compelling state interests that may justify limited restrictions include protecting public health during a pandemic or ensuring the integrity of state benefits programs

Sources of Interstate Travel Rights

Privileges and Immunities Clauses

• The Privileges and Immunities Clause of Article IV, Section 2 prohibits states from discriminating against citizens of other states in terms of the privileges and immunities of state citizenship
• The Supreme Court has interpreted the Privileges and Immunities Clause to protect the right to interstate travel and migration, as it ensures that citizens of one state are treated equally in other states
• This clause prevents states from imposing unreasonable burdens or restrictions on citizens of other states who seek to travel or establish residence within their borders
• The Privileges or Immunities Clause of the Fourteenth Amendment has also been cited as a source of the right to interstate travel and migration, though its scope and application have been more limited

Commerce Clause

• The Commerce Clause, which grants Congress the power to regulate interstate commerce, has been used to protect the right to interstate travel and migration from state-imposed burdens or restrictions
• The Supreme Court has recognized that the right to interstate travel and migration is necessary for the proper functioning of the federal system and the national economy
• Restrictions on interstate travel and migration can have a significant impact on interstate commerce, as they may hinder the free flow of goods, services, and labor across state lines
• The Commerce Clause allows Congress to preempt state laws that unduly burden or discriminate against interstate travel and migration, ensuring a cohesive national market and protecting individual freedom of movement

Limitations on Interstate Travel

Permissible State Regulations

• While the right to interstate travel and migration is fundamental, it is not absolute and may be subject to certain limitations
• States may impose reasonable, non-discriminatory regulations on interstate travel and migration to promote legitimate state interests, such as public health, safety, or welfare
• Examples of permissible state regulations include requiring drivers to obtain a state license, mandating vehicle insurance, or imposing speed limits on highways
• Residency requirements for certain state benefits or privileges, such as in-state tuition or hunting licenses, have been upheld as permissible limitations on the right to interstate travel and migration

Restrictions Based on Suspect Classifications

• Restrictions on interstate travel and migration that are based on suspect classifications, such as race or national origin, are subject to strict scrutiny and are generally unconstitutional
• Such restrictions are presumed to be motivated by prejudice or animus and are rarely, if ever, justified by a compelling state interest
• Examples of unconstitutional restrictions based on suspect classifications include laws that prohibit or discriminate against the migration of individuals based on their race, ethnicity, or national origin
• These types of restrictions violate not only the right to interstate travel and migration but also the Equal Protection Clause of the Fourteenth Amendment

Emergency Limitations

• In times of emergency or crisis, such as a pandemic, states may impose temporary restrictions on interstate travel and migration to protect public health, but these restrictions must be justified by a compelling interest and narrowly tailored
• Emergency restrictions on interstate travel and migration must be based on scientific evidence and public health guidelines, not arbitrary or discriminatory factors
• Examples of emergency limitations that may be permissible include requiring travelers from high-risk areas to quarantine upon arrival or temporarily suspending non-essential travel during a surge in COVID-19 cases
• However, even in times of emergency, restrictions on interstate travel and migration must be continually reassessed and lifted as soon as the compelling justification no longer exists

Interstate Travel in Context

Access to Welfare Benefits

• The right to interstate travel and migration has been applied in the context of access to welfare benefits, with the Supreme Court striking down durational residency requirements for such benefits as unconstitutional
• In Shapiro v. Thompson (1969), the Court held that a one-year residency requirement for welfare benefits violated the right to interstate travel and migration, as it penalized the exercise of this fundamental right
• The Court reasoned that the residency requirement created an impermissible "waiting period" that discriminated against new residents and deterred interstate migration
• This decision affirmed that states cannot impose significant burdens on the right to interstate travel and migration, even in the context of distributing state benefits

Voting Rights

• The right to interstate travel and migration has also been invoked in the context of voting rights, with the Supreme Court invalidating certain residency requirements for voting as unconstitutional burdens on this right
• In Dunn v. Blumstein (1972), the Court struck down a one-year residency requirement for voting in state elections, finding that it unconstitutionally interfered with the right to interstate travel and migration
• The Court held that the residency requirement was not narrowly tailored to achieve the state's interest in preventing voter fraud and ensuring a knowledgeable electorate
• This decision demonstrated that the right to interstate travel and migration extends to the fundamental right to vote and that states cannot impose excessive residency requirements that deter or penalize interstate migration

Other Contexts

• The application of the right to interstate travel and migration in other contexts, such as employment or housing, has been more limited, with courts generally upholding non-discriminatory regulations that serve legitimate state interests
• For example, states may require professional licenses for certain occupations to ensure public safety and welfare, even if these requirements may indirectly burden interstate migration
• Similarly, local zoning laws that restrict the availability of housing may be upheld if they are based on legitimate land use concerns and do not discriminate against interstate migrants
• However, regulations that directly target or discriminate against interstate migrants in the contexts of employment or housing are likely to be subject to strict scrutiny and may be struck down as unconstitutional burdens on the right to interstate travel and migration