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CDC No-Sail Order Likely Exceeds the CDC's Statutory Powers

So a federal judge held today, preliminarily enjoining the order (which restricted cruise ship operations).


From Florida v. Becerra, decided today by Judge Steven Merryday (S.D. Fla.) (124 pages):

Because of (1) Florida's probability of success on the merits, (2) the imminent threat of irreparable injury to Florida, (3) the comparative injury depending on whether an injunction issues, and (4) the imminent and material threat to the public interest, Florida's motion for preliminary injunction is GRANTED, and CDC is PRELIMINARILY ENJOINED from enforcing against a cruise ship arriving in, within, or departing from a port in Florida the conditional sailing order and the later measures (technical guidelines, manuals, and the like).

However, the preliminary injunction is STAYED until 12:01 a.m. EDT on JULY 18, 2021, at which time the conditional sailing order and the measures promulgated under the conditional sailing order will persist as only a non-binding "consideration," "recommendation" or "guideline," the same tools used by CDC when addressing the practices in other similarly situated industries, such as airlines, railroads, hotels, casinos, sports venues, buses, subways, and others.

However, to further safeguard the public's health while this action pends, CDC may propose not later than JULY 2, 2021, a narrower injunction both permitting cruise ships to sail timely and remaining within CDC's authority as interpreted in this order. The motion for the proposed injunction must support the proposed terms with current scientific evidence and fully disclose—if unavailable to the public—scientific evidence, including methodology, raw data, analysis, and the like and the names and qualifications of the scientists participating in the study, modeling, or the like. If CDC moves under this  paragraph, Florida must respond within seven days. A hearing will occur immediately after Florida's response.

An excerpt from the reasoning:

[T]he history of federal involvement in quarantine regulation confirms that the power peaked in the late-nineteenth and early twentieth century amid the threat of yellow fever, cholera, malaria, and the like, but the power receded during the past fifty years (at least, until quite recently). The history shows (1) that the public health power, including the power to quarantine, was traditionally understood—and still is understood—as a function of state police power; (2) that the federal quarantine power has both expanded and contracted; (3) that historically the federal quarantine power was limited to a discrete action, such as inspection and sanitation at a port of entry, as well as detention for the duration of a disease's incubation period; (4) that although the federal government has detained vessels, conditioned pratique ["clearance granted to a ship to proceed into port after compliance with health regulations or quarantine" -EV], and banned a discrete item, federal deployment of these measures has been distinctly limited in time, scope, and subject matter; and (5) that the Public Health Service Act of 1944 codifies the limited regulatory power typical of preventing diseases caused by a discrete item or a person at a major port of entry.

Never has CDC (or a predecessor) detained a vessel for more than fifteen months; never has CDC implemented a widespread or industry-wide detention of a fleet of vessels in American waters; never has CDC conditioned pratique as extensively and burdensomely as the conditional sailing order; and never has CDC imposed restrictions that have summarily dismissed the effectiveness of state regulation and halted for an extended time an entire multi-billion dollar industry nationwide. In a word, never has CDC implemented measures as extensive, disabling, and exclusive as those under review in this action.

However, in this action CDC claims a startlingly magnified power. But as CDC concedes, the Public Health Service Act "consolidates and codifies" the federal quarantine practices applied during the previous century, and "over the 20th and into the 21st century, the legislative framing for quarantine has remained relatively constant." Thus, viewed with the benefit of history, CDC's assertion of a formidable and unprecedented authority warrants a healthy dose of skepticism. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) ("When an agency claims to discover in a long-extant statute an unheralded power to regulate 'a significant portion of the American economy,' we typically greet its announcement with a measure of skepticism.")….

A reasonable interpretation of the statutes (in conjunction with the animating history) reveals that the conditional sailing order exceeds the powers described in the statutes …. The conditional sailing order includes a few requirements that resemble CDC's statutory authority, such as reporting requirements about a vessel's "ill" passengers and requirements to sanitize certain areas of a vessel. However, the conditional sailing order also requires a vessel operator, among other unauthorized measures, to (1) build an onboard laboratory, (2) revamp a ship's ventilation system, (3) remain detained until complying with long-delayed and ever-shifting requirements, and (4) ensure the vaccination of 98% of crew and 95% of the passengers to bypass a costly and burdensome simulated voyage requirement. Even if granting CDC's tortured explanation that the conditional sailing order merely conditions free pratique, the conditional sailing order imposes an indiscriminate and burdensome conditioning of free pratique that amounts to an unprecedented detention of an entire fleet of recreational cruising vessels.