This originally appeared at the Future of Freedom Foundation.
Americans used to boast proudly that unlike most countries in the world, domestic travel in the United States was unfettered by legal obstacles. Unfortunately, an array of restrictions on airline travel reduced that freedom, but one could still drive from Massachusetts to California without once having to “show your papers” at a checkpoint. Increasingly, though, that freedom to travel is under siege, and the public is in danger of the loss of another liberty. Both conservatives and progressives are responsible for that development.
The latest example of such government intrusion is the campaign in several Texas counties and cities to bar women seeking abortions in another state from using the roadways in those Texas jurisdictions to travel out of state for that purpose. Proponents of those ordinances contend that they are legal because they prevent “abortion trafficking.” It is pertinent to ask at the outset how such laws would be enforced. One can picture state or local police stopping motorists who have a woman of child-bearing years in the vehicle and then interrogating both driver and such passengers about their destination and reason for travel.
If that prospect might seem far-fetched, consider that Customs and Border Protection (CBP) has routinely set up checkpoints for decades (especially throughout southwestern states) in an attempt to determine the citizenship or immigration status of travelers. Congress quietly passed a law in 1946 authorizing such measures “within a reasonable distance from the border.” The Border Patrol then decided on its own that 100 miles from the border was “reasonable.” A 1973 U.S. Supreme Court decision ratified the determination that travelers could be stopped and questioned (within limits) within the border zones. Despite the efforts of the American Civil Liberties Union and other civil liberties advocates, the CBP still has the authority to establish checkpoints as much as 100 miles from any U.S. land or maritime border. Nearly two-thirds of the U.S. population resides in such zones.
A colleague of mine was stopped and questioned at length about his travels and citizenship. He is a citizen born in the United States, but that reality did not deter the Border Patrol agents from harassing him.The incident occurred more than 20 years ago, but there are multiple reports that such CBP conduct has become even more frequent.
Measures that state and local officials adopted during the Covid pandemic gave restrictions on the domestic right to travel a major boost. The governors of New York, California, Michigan, and other states issued orders closing most private businesses and requiring residents not engaged in “essential” activities to remain in their homes. In mid‐March, North Carolina went beyond shutting down individual enterprises or even types of businesses; authorities there placed most of the Outer Banks off limits to tourists and other outsiders. Police established checkpoints to examine identifications and required special permits for access.
The worst offender, though, was Michigan governor Gretchen Whitmer. She issued an executive order in April 2020 not only barring tourists from entering resort areas, but also prohibiting people from traveling between residences that they owned (principally vacation lake cottages). People also were prevented from visiting friends and relatives, even if they lived in the same neighborhood.
It was especially chilling that the travel ban was just one of 140 executive orders that Whitmer issued during the following months. Among those edicts were measures repeatedly allowing her to extend her rule without involving the state legislature. The Michigan constitution allows the governor to exercise extraordinary powers for up to 30 days in an emergency before restoring the legislature’s normal role. Whitmer, though, repeatedly made minor, last-minute changes in the language of the existing executive order and then argued that her unfettered powers could continue because there was now a “new” executive emergency order. Her travel ban was a symptom of much broader authoritarian impulses.
Progressives who are now screaming about the anti-abortion travel restrictions in Texas had nothing but praise for Whitmer’s restrictions — indeed, for her overall extraordinary conduct. They seemed oblivious to the dangerous precedents that she and other governors were setting. Likewise, anti-abortion advocates are willfully blind to the new, equally dangerous precedents that they’re embracing. Yet another important liberty is under bipartisan attack.
Ted Galen Carpenter is a policy advisor for The Future of Freedom Foundation. He is also a senior fellow at the Randolph Bourne Institute and a senior fellow at the Libertarian Institute and served in various policy positions during a 37-year career at the Cato Institute. Dr. Carpenter is the author of 13 books and more than 1,200 articles on international affairs. His latest book is Unreliable Watchdog: The News Media and U.S. Foreign Policy (2022).
