good morning with the court's permission i would like to st request that i reserve three minutes for rebuttal yes thank you the right to travel from state to state is deeply rooted in our nation's history and its played an important role in turning many states into a single nation it is the supreme court is right now mr smith excuse me give us a little credit i think we all understand but there was women are really enjoying what there is to preliminarily enjoying your order is the governor's authority which she has reserved herself to restore her earlier approach which would be consistent with what the th circuit that because because the governor reserve the authority to restore her earlier approach she could reinstate her earlier restrictions just as easily as she did repeal them and that's the same situation we have in this case now one issue about the right to travel but i think it's particularly important to keep in mind the right before you move on the merits just on the move this issue this isn't a typical voluntary cessation case in the sense that the reason that there was a cessation of the activity was a change in the public health situation an amendment and sponsor that so i would thought it would be of some relevance how likely it is that secure the order that you want enjoy is to be reinstated in the mere fact that she hasn't completely disavowed it doesn't seem to me under th challenge you want you want in the junction again someone has no testing exception that's that's correct i think there are there could be an argument that the testing exception doesn't necessarily cure the constitutional flaw but i recognize your point on  that the issue under under the voluntary association doctrine to govern the governor bears the burden of proving that it is absolutely clear that it's unlikely that she will return to her earlier ways and i don't think she's done that on this record with this issue that is arisen during the course of the appeal certainly as far as testing is concerned you know we have we see situations where testing whether testing backlogs you  know moving into the school system the school the school season so one might expect that the need for testing within the state of maine is going to increase and the governor hasn't disavowed on her but were he to move back to be earlier restrictions now one issue here that i think is particularly important with the right to travel is that the right to travel is particularly susceptible to state interference and that's because right to travel restrictions typically befall nonresidents to whom the responsible state government is not politically accountable and i think in this case the district court did correctly determine that the st two components of the right to travel were impacted now i'd like to talk for a moment about the governor's argument that this case should be reviewed going to the jacobs unverse massachusetts standard and this as justice alito recently stated it would be a mistake to construe jacobson as providing the last word on what the constitution allows state governments to do during the code in one thousand pandemic nowhere in jacobson does it say that a public health emergency operates suspend itin judicial review when individual rights for clay instead it's consistent with centuries of history from the supreme court stating that the constitution applies at all times and all cert and in all circumstances now looking at jacobson itself context matters especially when you're talking about a one hundred and fifteen year old case decided during the progressive era i had the district court didn't rely on met her burden of stablish ing that the fourteen day quarantine was necessary to promote compelling government interest and i would respectfully submit that the record in this case does not demonstrate that the fourteen day is a  necessary evil done the supreme court explained in a right to travel context once again that if there are other more real other reasonable ways to achieve the compelling government interest that are less burdensome on probable the government has the responsibility to use those less restrictive means and if we look at the record that was submitted the governor has all that it needed that the fourteen day quarantine is an overbroad prescription given the gravity of the harm they did something broader but that doesn't show that there was something there or that they could have had confidence in doing or that a corpse should require them to take the risk of the narrower thing would work what's your support for that that's what i thought the thrust of the district court of you was which is that it was an emergency it was a difficult choice to be made and this was in light of those are the chances and the uncertainty of the moment a enough of necessary to preventing manes hospitals from being overwhelmed you know why did she show that quarantining only those who are traveling from areas experiencing a high prevalence of the virus w unworkable solution and nowhere did she show that allowing travelers to quarantine at least in their own states during the fourteen day period would be insufficient so in the end the district court's decision and get it rest on principles of scientific uncertainty erected on principles of the lack of a defect fully factually developed record which should have weighed in our favor i should lucia likelihood of success on the merits and to develop the record to the extent will require can confidently predict that will include that's that's correct in most circumstances your honor when you're dealing with stri scrutiny however you're going to supreme court has held that even if the preliminary injunction stage once the proponent establishes that you want implicate strict scrutiny the burden shifts and at that point the proponent of the preliminary injunction is deemed a likely to prevail unless the government comes forward with evidence demonstrate affirmatively demonstrating that whatever it is they've done is necessary to further a compelling necessary has limited that so the fourteen days is calibrated to what was known then about interfacing period and there was a high degree of uncertainty as to how to best respond in handling it was by design a temporary measure supreme court has repeatedly held that even in times of emergencies the the constitution applies equally and i would respectfully disagree with the characterization of executive order is time limited there is no sunset in terms of when the fourteen day quarantine would be lifted when you look at the governor's reopening plan he contemplated a fourteen day quarantine persist staying throughout the months of her throughout the entire summer there because that was something that district court also cited in its opinion chief justice roberts rest referred to this in itself a pentecostal concurrence now again this isn't a case about a battle of the experts but about failure proof and the it seems to me most of what we've been talking about is whether you have a case on the merits and you know you may well have a case on the merits but one of the factors for a preliminary injunction is the public interest and at the time that this was in place in under the circumstances that it comes to us on appeal i don't with all of the unknowns that existed at the time i i'm failing to see what the argument is that the potential likelihood of success on the merits would outweigh the public interest in the framework that we have to look at it well i think the public interest your honor it would be contrary to the public interest to allow the state of maine to perpetuate the constitutional violation and if the district court had of concluded that we had a substantial likelihood of success on the merits and would have been in the public interest for the court to enjoin executive order thirty dollars which would have allowed the governor an opportunity to reconsider that executive order or perhaps come up with something less restrictive that would meet the strict scrutiny test now but the very power mount consideration in terms of injunctive relief here has got to be the the help from safety of the of the population of m when that's that's that's clearly got to be weighed in the polemarchus injunction calculus and that counsels in favor of taking preventive action reasonable preventive that action based on what skimpy knowledge the government had when she had it i agree with you your honor that that is an important aspect of the public interest in this case and i think  we to make of your your claim that the problem here is a failure of proof that's why the public the way i see it that's why the public interest waste the other way is because of the unknowns that were in place that's the only point i'm trying to make  think i think my response to that your honour's the fundamental objective of the fourteen day quarantine is to safeguard manes hospital capacity and knowing the record the governor say that in the absence of the fourteen day quarantine is likely or even reasonably expected that means hospital capacity is likely to be exceed exceeded she simply offers of boilerplate language about the nature of the spread of cover nineteen which we agree is a serious issue and represents a compelling government interest but she never linked that to the actual necessity of the fourteen day quarantine and that's really our point on why she strict scrutiny test especially when you compare the approach in maine with approaches that have been taken in other states where they were affected we control the virus to levels that are consistent with what we have in the maine and maybe just as a final point if i may i think it's important governor is asking to bless here with her reading of jacobs and she's telling you that she has the power to effect that we suspend constitutional rights travel bans closing churches banning protests so long as they may have an effect on the spread of code nineteen but what i wanted out the district court didn't rely on jacob possibility that it might come back in place when the action could still go forward if you want to get a declared jury relieved if you want to get damages for what happened all of that would still be litigated out what is the need for an injunction right  well i think i think the need for the injunction your honor is this work orders are he concluded that the governor's earlier approach is constitutional and given the fact that she has retained the authority to reimplement district or worse hypothetically wrong in that point where that aspect of the decision was vacated for you to get the injunction you still have to satisfy the hardship on that as well that's a hardship in that circumstance if all all that with health is given the order is no longer employed given has backed with it is that it will ever come back into play given that the action itself has not moved the particular thing that is in this appeal which is a request  injunction to be rejected on the absence of any zone hardship and you'd be no worse off with well i think i think we would be worse off your honor because the governor would still have the authority to return to her to her earlier restrictions at least judged a of the time that we filed a notice of appeal and that the heart of the mere possibility of that happening is the hardship well i think it's i think it's an effect similar to a prior restraint where the governor has the ability to shift back and if she were to hypothetically do do that i'm not sure that we would have the ability to necessarily move forward to appeal judge walker's may th order that point where we are now we're told that that approach is constitutional she didn't excuse me thinks the state is likely to succeed on showing that it is constitutional but it is a predictive ruling not a final ruling by the district court on constitutionality  morning and please the court there was a much different way the plaintiffs could have litigated this case if they were interested in getting it relief from the travel restrictions so the original executive order that they are challenging was repealed and replaced with a new order back on june th and so it would have been a very straight court process for the plaintiffs who instead of going up on appeal to this court they could have easily returned to the district court and created a new record and a new set of fact of the matter is unless you're pretty had to tell us that this appeal was mahmoud or there were some other defects in this was she doing then we've got to tackle what he's put before us in the answer the question she's put before us no well i would say that that the governor is never explicitly said you know i reserve the right to reinstate that exact order i think i think what the governor has been very consistent about is that she is constantly evaluating the conditions on the crowd she's constantly consulting with public health experts and she was going to make whatever modifications she thinks are necessary to protect the public health so just for example if it turns out that there's a sudden case sudden spike of cocaine cases in new york for example she may well remove new york from that for that exemption so so uncertainly possible and in the most hypothetical theoretical way that we could end up back again with an order that's exactly like the the order that's at issue here but i think what's far more likely is that to the extent that the governor does impose new restrictions and sort of dials back for what's in place now that we're going to see some other form and we're going to see some other form a law that has been specifically adapted to address the conditions it but i think that the other important thing to keep in mind your honour's is that just assume for the sake of argument that the government were to implement the exact same order in the future that order is reduced and a different set of circumstances is going to be a different set of facts set of facts that just seems like it's not a wise use of anyone's resources the only thing that concerns me about the account which each step of it makes sense but if i follow that you affected we could never enjoy any emergency when there was some change in the world you would save each time well now it's moot because the new when you change is going to have a new record so back to where you could never get injunctive relief from any emergency but but this current order has hardly been in effect for three mobs and there's no indication that it's going to be changed any time soon so i think you would just be you know speculation just because one order was only in effect for sixty days i think it would be respectable to assume that this current order is is going to have some kind of limited lifetime i mean yes it certainly is going to be changed at some point there is no doubt about that but i think again there's plenty of time to appeal to opinion both just requote review a if the state of maine goes back to something very close to what the the challenge to action here is that would not likely be in place very long because that was under dire circumstances and in so that seems to me that's the problem it's it's not the current regime that may be in place for a while it's if we go if they go back to this regime that was only in place for a short period of time isn't doesn't that provide an exception to the the the movie star turn as it were is that i think that those issues with respect to that the prior regime which may come into place for a short period  perhaps the one that your honour's is referring to and i think the problem with that exception is or has to be a reasonable expectation that the same complaint army is going to be subject to the same action and so i think the same action  not constitutional meaning a must the court is prepared to go that far and say that there are no circumstances under which a state facing a code it can embrace some some kind of quarantine requirement then any other kind of analysis the court does assuming it gets to strict scrutiny is is then going to get into the exact fit between the precise measures that the governor implemented and the actual conditions that are on the ground and so to to talk to hypothesize or to speculate that public health is most dire is effectively under viewable because it will be mooted every single time because by its nature it's a temporary action and if and you are exactly right the next time it comes up the world will be a little bit different we'll know a little bit more the disease might have gotten worse it might have gotten less it would be a different backing record but the consequence is that then if we move that way to that and we say you have sixty days to do what you want because we'll never review it so so i mean we'd have to backtrack on that just in terms of what our doctrine says about the time but i keep going back and i apologize if i'm hot making this clear or not fully understanding the court's questions but what i think the the capable repetition evading review those are cases where it were the exact same thing is going to happen in the future so for example you have some kind of abortion restriction and you have gas the case becomes moot because the woman has had a baby but we know that screening task or you know suppose that there's some there's some shift in infection rates in different states any kind of any kind of peace like that is going to try the court to delve into the specific facts and so i'm not sure how it would help for the court justices speculate on whether or not a previous order that was based on historical set of facts that may never again be repeated is constitutional or not because even if a corporate a hall that executive order thirty four was unconstitutional strict scrutiny that that's going to say nothing about the next order that it imposes a different set of restrictions based on a different set of facts if i'm glad i would have had it would have some impact on how the attorney general go well i don't know that i have to go back and i confess that i haven't i haven't looked at the complaint in a while but my claim for damages in the but my memories of this is an action against the governor only in c who is a public health expert years of experience in public health and he didn't just make sort of broad statements that this is the best we can do at this point and this is the only way to solve the problem he went through in detail st of you can't come into the state if you've been exposed to someone he explained why that wouldn't be effective and i also want to push back on that you know that he didn't really outline a rider view such as an impact on the state he put forth a series of facts we were going to facing an influx of people visiting from other areas in previous years as many as twenty million people coming into the state and so i did want to push back on the idea that we can sufficiently demonstrate our case i think the basic problem here is that we presented all these facts supported by that corporation and the point is didn't offer anything to rebut any of those points and i was there no further questions your honor i don't think i have anything else to across all right thank you mr tom we'll be seeing in discussing the state of the record in the declaration from dr shaw well i take the point about the battle of the experts as we speak the problem that we see with the record in this case is there was no demonstration of what was likely to happen in the absence of a fourteen day quarantine and i don't think the record stands for the proposition that there was significant so much uncertainty about what would happen in the absence of a fourteen day quarantine and they had to take that step in order to prevent failure of the health care system and then going back to some of the points that were made earlier the what's your best piece of record evidence to support what you just said well i think it's daughter shot a statement that it was an effort to err on the side of caution in his declaration which was an paragraphs forty three and forty four where he's essentially explaining that that's the strategy that they've chosen and from a public health perspective that may be a perfectly appropriate but when you're dealing with a situation where the restriction is placing a burden on a fundamental constitutional constitutional right the burden on the governor is to demonstrate the necessity of that instruction in promoting a governmental interest and then again back as to the root this issue again we were dealing with restriction that was in place for sixty five days i think it was rescinded twenty five days after we filed lawsuits and i think it is a situation where if you dismiss this appeal is mo who face who challenge emergency restrictions are going to be caught in a catch twenty two where they're not able to fully litigate anything and then it will get eventually routed whatever the emergency ends in terms of the actual time in terms with respect to capable of evading review her capable of repetition but evading review the supreme court has said that six months is not enough time to get out of that doctrine so i would suggest the time frame in this you take this case under advi