The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
You can read the Complaint in Norwegian Cruise Line Holdings, Inc. v. Rivkees, filed yesterday. An excerpt:
3. Now, after months of Herculean efforts, NCLH is at last set to resume sailing August 15, 2021, in a way that will be safe, sound, and consistent with governing law, particularly the Conditional Sailing Order administered by the Centers for Disease Control and Prevention ("CDC") of the U.S. Department of Health and Human Services. Yet one anomalous, misguided intrusion threatens to spoil NCLH's careful planning and force it to cancel or hobble upcoming cruises, thereby imperiling and impairing passengers' experiences and inflicting irreparable harm of vast dimensions.
4. While NCLH would require documentation confirming that its passengers have been vaccinated (per the consensus of experts, the desires of passengers, and NCLH's commitments to CDC), the State of Florida has recently enacted a law—Florida Statute § 381.00316—that expressly prohibits NCLH from requiring such documentation as a matter of Florida law. The upshot places NCLH in an impossible dilemma as it prepares to set sail from Florida: NCLH will find itself either on the wrong side of health and safety and the operative federal legal framework, or else on the wrong side of Florida law.
5. Because neither prospect is acceptable, NCLH must respectfully turn to this Court seeking essential relief. Only with the benefit of prompt judicial relief suspending Florida's prohibition can NCLH's passenger cruises proceed as currently planned starting August 15. For the reasons set forth in accompanying submissions, this Court has overwhelming justification to grant preliminary and permanent injunctions suspending Florida's prohibition as applied to NCLH.
6. As set forth herein, Florida's categorical prohibition against requiring ocumentation of vaccinations from customers, as applied to NCLH, violates federal law in multiple, independent respects: Florida's prohibition (1) conflicts with federal statutes and regulations and is therefore preempted under 42 U.S.C. § 264 and CDC's regulations thereunder; (2) blocks communications between a business and its customers, in violation of the First Amendment to the U.S. Constitution (as applicable to the State of Florida under the Fourteenth Amendment); (3) profoundly disrupts the proper flow of interstate and international commerce without advancing any substantial state interest, in violation of the Dormant Commerce Clause; and (4) inexplicably precludes this business from protecting the health and safety of its employees and customers against the extraordinary backdrop of a deadly pandemic, in violation of substantive due process as protected by the Fourteenth Amendment.
I'm slammed now and don't have much to say about this, but I thought our readers would be interested in seeing the Complaint.