A. Michael Froomkin (University of Miami School of Law) has posted Putting the Brakes on a No-Drive List on SSRN. Here is the abstract:
The constitutional right to domestic travel, though often called fundamental, is doctrinally unstable and full of exceptions—a vulnerability that could enable an oppressive new “No-Drive” list modeled on the No-Fly list, barring designated individuals from driving or riding as passengers, across (or within) state lines.
The No-Fly list rests on four premises transferable to driving: that the activity is a privilege, not a right; that special circumstances justify restricting people never charged or convicted; that government can identify targets through secretive processes; and that limited administrative review satisfies due process. Since driving is already legally treated as a privilege, this doctrinal groundwork exists. Meanwhile, license plate readers, facial recognition, GPS tracking, and pervasive surveillance make such a scheme technically feasible where it once wasn’t.
A No-Drive list could be implemented via congressional authorization, emergency powers, or immigration authority, with rhetoric labeling political opponents “domestic terrorists” supplying a ready justification—echoing the No-Fly list’s rationale, and made increasingly practical by expanding surveillance infrastructure.
Such a list would face even stronger moral, political, and economic objections than the No-Fly list. Freedom of movement is central to personal liberty and dignity; restricting it would harm democratic participation, chill association, enable authoritarian control, disrupt labor markets and resource allocation, and undermine competitive federalism. Strict scrutiny, due process and statutory claims offer legal challenges, especially against passenger prohibitions—which would effectively block interstate travel—and surveillance-based enforcement raises Fourth Amendment concerns. Still, the travel right’s underlying fragility leaves its judicial invalidation uncertain.
Preventing this outcome requires recognizing freedom of movement as a foundational structural guarantee, not a mere exception-riddled instrumental right—lest it become a tool for authoritarian control over those labeled “domestic terrorists,” a category the Trump administration has applied to peaceful protesters and political adversaries.
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