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.

Comments

[Life of Brian]

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.

Way to call their bluff. I predict the CDC will fold rather than actually trying to cobble together something that requires more than ominous Chicken Little handwaving by arrogant squirts whose freshly-minted titles ill portend their relevant knowledge and experience.

[Abdul Abulbul Amir]

Zap!

[DaivdBehar]

Since the 14th Century, in the quarantine laws of all the states, in established public health, the practice has been to quarantine the infected.

These Democrat enemies quarantined the healthy. The lcokdown caused a drop in the world GDP of $4 trillion. That impoverishment killed 100 million people by starvation. This is the biggest, quickest mass murder in history. As a result of this biggest fraud heist, the tech billionaires of the US pulled in $1.7 trillion, those of China, $2 trillion.

The lawyer profession refused to protect us. This garbage, toxic occupation should be held to account.

[Pike Bishop]

Ron De Santis has a horseshoe up his ass.

[Stephen Lathrop]

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.

The emergency power to combat deadly contagion is long-standing and unquestionably constitutional. Given that, the question left for the court is whether the means are proper—which is to say, proper as a matter of law, not proper as a matter of fact. The power to determine necessity belongs to the legislature, not to the court. It is massive judicial overreach for the court to demand its own review of the science the legislature relied upon to find necessity.

Once again, none of this judicial meddling with the separation of powers would be happening if the pandemic in question was one which threatened to kill an imposing fraction of everyone. It is a mistake to rely upon the muddled circumstances delivered by Covid-19 to make law which might later be applied catastrophically to something far more threatening.

[Life of Brian]

The emergency power to combat deadly contagion is long-standing and unquestionably constitutional.

The problem of course being the ever-increasing evidence of the ludicrous torture being done to the words "emergency" and "deadly" at this stage of the game. Emergency powers are for responsible use during actual emergencies, not for permanent expansion of dictatorial micromanagement via perpetual "ooooh scary" rabbit-chasing exercises. Hence the "put up or shut up" order.

[Stephen Lathrop]

There is no such evidence, and only fools and dupes suppose otherwise. It is true that Covid-19 is no longer killing Americans at a rate several times faster than WW II killed Americans, but even this week, Covid-19 is killing Americans faster than did the Vietnam War in the worst weeks of that war, during the Tet Offensive.

Trying to minimize that just makes you ridiculous.

[Ben_]

Power-hungry people invoke war equivalences to justify themselves.

People who aren’t motivated by fear or lust for power won’t be persuaded by rhetorical comparisons. You might want to try reasoning instead.

[Rev. Arthur L. Kirkland]

A call for reason from the superstitious, belligerently ignorant, lethally reckless, science-disdaining, virus-flouting side of the aisle?

Winning the culture war seems to be getting easier for the reasoning, inclusive, modern liberal-libertarian mainstream.

[Ben_]

The mute user feature is really nice.

[Rev. Arthur L. Kirkland]

So is winning the culture war.

You would not understand, Ben.

But your compliance is appreciated.

[Sarcastr0]

LoB, don't you also think evidence points to COVID being designed in China?

A nondeadly bioweapon doesn't make a lot of sense. Maybe you should stop just throwing crap at the wall to try and own the libs and stick to something consistent.

[Rossami]

You do realize that the CDC is an Executive agency, right? The whole point is that the Legislature didn't grant the authority that they CDC asserts. The Legislature granted the CDC certain authority if it was properly based on credible science.

[Stephen Lathrop]

Rossami, what difference does that make? The question of factual necessity is not for the Court to review. You might as well say that because, in your view, the legislature did not grant the CDC the authority it asserts it has, it is up to Dr. Ed to step in to block the CDC. He has as much authority as the Court does on that question. More actually. Which is the point.

I get that the notion of judicial supremacy is much in vogue on the political right, but it can't extend so far that every fact behind every public policy decision is subject to judicial review. Let the courts decide the proper factual basis for legislative policy, and the courts would rule both policy and the law together, leaving the legislature with nothing to do. Political accountability for policy would be gone. You and Dr. Ed would be out of the policy loop for good.

The requirement to keep questions of fact in the legislature goes back to John Marshall, who was insistent. That means that if you think the CDC is out of control, and without factual basis to do what it is doing, you ought to take your Court case to Congress instead, which does have the authority to decide. Tell Congress to rein in the CDC.

[Rossami]

You are entirely missing the point. If someone doesn't review it, the executive becomes a sole authority to do whatever they want. You won't let the courts review but you don't say who should instead.

The fact is that in our system, the courts do have the authority to determine whether executive agencies are doing what the legislature told them to do.

[Stephen Lathrop]

You won’t let the courts review but you don’t say who should instead.

Rossami, what do you think this was, when I wrote, ". . . if you think the CDC is out of control, and without factual basis to do what it is doing, you ought to take your Court case to Congress instead, which does have the authority to decide. Tell Congress to rein in the CDC."

In American constitutionalism, judicial supremacy is not a thing.

[David Nieporent]

Rossami, what difference does that make?

Every difference. Even if your constitutional theories based on nothing more than chanting the word "Sovereign" three times in a bathroom mirror and relying on a single sentence from a court decision from thirty years after the constitution was written were valid, this isn't a constitutional case.

I'll repeat: this case isn't about what powers the legislature has under the constitution. So your boilerplate arguments are completely irrelevant.

This case is about whether the legislature has granted certain powers to the executive.

[tkamenick]

The question isn't "Can government do this?", it's "Has this very specific part of the government that only exists by act of the legislature been given this specific power to exercise?"

[Ben_]

The answer doesn’t matter if courts don’t care. We’ve just spent more than a year with courts saying they don’t care. This decision is big news because it runs contrary to that trend.

[DaveM]

So, in a nutshell: "Because I said so" is not enough of a reason.

[Ben_]

(this time)