Mon 06/21/2021 02:45 AM
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On Friday, June 18, U.S. District Judge Steven Merryday issued a scathing opinion and order granting the state of Florida’s motion for preliminary injunction barring enforcement of the U.S. Centers for Disease Control and Prevention’s Conditional Sailing Order, or CSO, setting forth mandatory conditions for a post-pandemic return to cruising from U.S. ports. The court’s order only applies to Florida ports for now, though Alaska and Texas have sought to intervene in the action.

The injunction will not become effective until July 18. At that time, Judge Merryday directs, the CSO and related orders will become “non-binding,” like CDC Covid-19 “guidance” aimed at “other similarly situated industries,” including airlines, railroads and hotels. The judge also gives the administration until July 2 to propose “a narrower injunction” supported by “current scientific evidence,” accompanied by methodology, raw data and the identity and qualifications of the scientists contributing to such evidence.

In opposition to the injunction, the administration generally argued that Florida lacked standing to attack regulations aimed solely at the cruise lines and that the CSO is within the CDC’s broad statutory authority to prevent disease transmission and bar ships from entering U.S. ports under the Public Health Service Act, or PHSA, and related regulations. Judge Merryday, however, finds that Florida has standing and is “highly likely to prevail on the merits” of its claim that the CSO and related orders exceed the CDC’s statutory and regulatory authority. In doing so, the judge takes direct aim at the power of executive agencies themselves, which he warns threaten to undermine the system of government contemplated by the U.S. Constitution.

In finding that Florida has standing, Judge Merryday cites three “proprietary” state economic interests affected by the cruising hiatus: payment of about $20 million in unemployment benefits to “claimants separated from the cruise industry,” loss of “hundreds of millions of dollars” in income for the state’s ports (“which are “political subdivisions of the state”) and loss of “approximately $82 million” in sales tax revenue.

The judge concludes that “Florida establishes a strong likelihood that many or almost all cruise ships will remain unable to sail for the entire summer season,” and continuing uncertainty will cause the state “a concrete economic injury” and “an increasingly threatening and imminent prospect that the cruise industry will depart the state.” The “dislocation of all or most of an entire industry” by the CDC “subjects Florida to a protracted or permanent loss of revenue” from one of the state’s “largest industries,” Judge Merryday says.

In a footnote, the judge rejects the administration’s contention that it is Florida’s ban on vaccine passports that will actually delay a return to cruising or motivate the cruise industry to leave the state. “Although a plaintiff’s contribution to an injury can defeat standing,” the judge concedes, Florida’s ban on vaccine passports “fails to definitively impede ships from resuming operation” because it neither “explicitly applies to federal regulation” nor “prohibits passengers from volunteering information about vaccination status.”

Turning to the merits - the validity of the CSO - Judge Merryday first undertakes a detailed review of the history of federal quarantine regulation and enforcement, concluding that “the federal quarantine power was limited to a discrete action, such as inspection and sanitation at a port of entry” and “although the federal government has detained vessels” and taken other measures to stop disease, “deployment of these measures has been distinctly limited in time, scope, and subject matter.” According to Judge Merryday, “never has CDC implemented measures as extensive, disabling, and exclusive as those under review in this action.”

Further, the history and language of and case law interpreting the PHSA, on which the CDC relies for its statutory authority, also “lends support to a narrower quarantine power for CDC,” the judge finds. According to Judge Merryday, “the statute includes nothing in scope or character similar” to “halting commerce” with “a fifteen-month closure of one or more industries.” Under the PHSA, the judge concludes, measures taken by the CDC to prevent disease “must resemble or remain akin to ‘inspection, fumigation, disinfection, sanitation, pest extermination, [or the] destruction of infected animals or articles.’”

The judge notes that when counsel for the CDC was asked for the “outer boundary” of its authority under the PHSA, counsel “was either unable or unwilling to specify any remedial or preventative measure that was beyond the authority of CDC” once the agency finds that it is “necessary” to alleviate “a risk of the interstate or international transmission” of a disease. “In sum,” the judge says, “CDC claims authority to impose nationwide any measure” to “reduce to ‘zero’ the risk of transmission of a disease - all based only on the director’s discretionary finding of ‘necessity.’” “That is a breathtaking, unprecedented, and acutely and singularly authoritarian claim,” Judge Merryday warns.

Judge Merryday remarks that, under the CDC’s expansive interpretation of the FHSA, the CDC could “generally shut down sexual intercourse in the United States” in order to “reduce to ‘zero’” the “human-to-human transmission of AIDS or syphilis or herpes.” “Political prudence (and difficulty of enforcement) might counsel CDC against this particular prohibition,” the judge continues, “but the statute, as understood by CDC, certainly erects no barrier.”

To the extent the PHSA actually allows the CDC to do whatever it finds “necessary” to reduce infections from a disease to zero, the judge alternatively finds the statute is an excessive delegation of Congressional authority because it provides no “intelligible principle” to limit the agency’s authority. Judge Merryday suggests the CDC’s broad exercise of power with respect to the cruise industry is a symptom of federal courts’ permissiveness in allowing “an increasing hegemony to the unelected, electorally unaccountable, and largely anonymous executive agents” in “formidable edifices in Washington, D.C.,” who are defended by “a legion of lawyers, staff, consultants, experts, and others, as well as litigious special interest entities.”

According to Judge Merryday, the growth of executive agency power has “mutated and deformed” the “theory of government that is explicit in the Constitution,” and the courts must prevent Congress from giving an agency the “power to decide for itself, unbound by legislative directive, the nature and scope” of its own authority “to deploy force.” If by enacting the PHSA Congress actually intended to give the CDC the power to shut down the cruise industry in an emergency based solely on a finding of necessity, the judge concludes, then the PHSA “unconstitutionally delegates legislative authority to the director of CDC.”

The judge finds that the merits are “unclear” on the current record with respect to Florida’s claim that the CSO violates the Administrative Procedures Act, or APA, because it is “arbitrary and capricious.” However, he states that two features of the CSO suggest it is arbitrary and capricious: the CSO “imposes vague and indefinite rules subject to change” and fails to consider measures taken by state and local governments to halt the pandemic.

“Because CDC neither evaluates nor even mentions measures undertaken or planned by the local health authorities of any state but, nevertheless, finds the measures inherently and inescapably insufficient, the conditional sailing order lacks a reasoned explanation of the insufficiency of those measures,” the judge says.

With respect to Florida’s claim that the CSO was enacted without sufficient public notice or comment, Judge Merryday notes that although the CDC received more than 13,000 comments on the CSO, the CSO itself fails to explicitly respond to a single comment. Nor has the CDC shown that “good cause” exists to dispose of notice and comment requirements due to an “emergency,” the judge says. “COVID-19 might have constituted an acute health threat” when the CSO was enacted, the judge reasons, but that does not mean imposition of the CSO requirements was an emergency “two-hundred-and-thirty-two days after cruising ceased” in March 2020.

“At every turn,” Judge Merryday concludes, the CDC’s “informal, quasi-notice-and-comment ‘interaction’ amounts to an extended monologue, supported by the unconvincing veneer of a ‘request for information,’ after which the agency failed to account to the cruise industry, to the states, and to the public.”

Finally, the judge finds that Florida has satisfied the other requirements for a preliminary injunction, in addition to a likelihood of success on the merits: irreparable harm, a balancing of the equities and the public interest. Specifically, the judge finds that the public interest weighs in favor of lifting the CSO at this point. “Even absent the conditional sailing order, the cruise industry appears poised to implement strong and proven safety measures for combating COVID-19,” the judge says, and “[c]ruises now safely sail all over the world with protocols designed to minimize the spread of COVID-19.”

“With the advent of highly effective vaccines, with more than half of adults fully vaccinated, with infection plummeting, with death from COVID-19 asymptotically approaching zero; with the benefit of effective therapeutics for COVID-19; with masks, safe distancing, and sanitation; and with the successful and safe re-opening of business, including airlines, sporting events, and other high capacity venues, COVID-19 no longer threatens the public’s health to the same extent presented at the start of the pandemic or when CDC issued the conditional sailing order,” Judge Merryday concludes.
 
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