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By: Barry Miller
A federal judge has refused to halt enforcement of an order that directed Kentuckians not to travel outside the state for two weeks because of COVID-19.
Governor Andy Beshear issued the order on March 30. It makes exceptions for those traveling to meet work requirements, buy necessary supplies, seek health care, or provide care for the elderly or disabled.
Plaintiff Allison Alessandro sued the governor in the United States District Court for the Eastern District of Kentucky on April 2. She filed her motion for a temporary restraining order with her complaint.
That motion argued that the right of interstate travel is “virtually unqualified,” and because this constitutional right was being impaired, irreparable injury is presumed. Judge Gregory Van Tatenhove said Alessandro still must show that any harm to her is immediate. He said he desire to visit friends and family in Ohio failed to satisfy that requirement.
Ms. Alessandro resides in Campbell County, Kentucky, which is on the Ohio border.
Judge Van Tatenhove also questioned whether Alessandro had shown irreparable harm. Because Ohio has also restricted travel it was not clear that enjoining Beshear’s travel order would give her a remedy.
The order also discussed a balance of harms, saying that enjoining the order might substantially harm other citizens, particularly those more vulnerable to COVID-19. Typically, if a law is unconstitutional, there is no harm to others by enjoining it, Judge Van Tatenhove wrote. The judge stated his review was preliminary. “In-depth consideration of the constitutional issues at play will require additional briefing from the parties,” he wrote, noting that the Commonwealth had not yet briefed those issues. He scheduled a telephonic conference with the parties for Monday.
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