Judge’s epic, 124-page cruise-ship order reveals clash between boosting the economy and keeping people alive

By: - June 25, 2021 7:00 am

A Carnival cruise ship is docked at PortMiami, one of five Florida seaports where cruiselines operate. Credit: Joe Raedle/Getty Images

Florida’s legal challenge to federal guidelines allowing cruise ships to sail under COVID restrictions invoked some of the conservative legal movement’s most cherished enthusiasms, including long-sought curbs on U.S. agencies’ authority to regulate business.

In U.S. District Judge Steven Merryday, a George H.W. Bush appointee in Tampa, the state found a jurist who agreed with Gov. Ron DeSantis and Attorney General Ashley Moody on every point.

In a sweeping decision handed down on June 18, Merryday ruled that the state was justified in bringing the lawsuit because of the “imminent and irreparable injury” to the state’s economy while cruise ships sit idle.

Of course, there’s the matter of protecting human life, but the judge said the U.S. Centers for Disease Control and Prevention overreached in its stated desire to block any potential transmissions of COVID-19.

“In sum, defining ‘transmission’ as a single human-to-human infection, 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,” he wrote.

In language attacking the decades-long expansion of executive authority at the expense of Congress — what conservatives deride as the “administrative state” — he found that the CDC had exceeded its authority in blocking cruise ships from sailing.

And he found that the agency has imposed the limits without giving the public and industry a real chance to participate in the process. Although the CDC collected thousands of public comments, it never read them, Merryday wrote.

“CDC cites no historical precedent in which the federal government detained a fleet of vessels for more than a year and imposed comprehensive and impossibly detailed ‘technical guidelines’ before again permitting a vessel to sail. That is, CDC cites no historical precedent for, in effect, closing an entire industry,” Merryday wrote.

He blocked enforcement of the CDC’s restrictions effective at just after midnight on July 18. Meanwhile, the agency and the state will try to mediate a settlement. If those talks fail, as they have in the past, the CDC order would become nonbinding recommendations similar to those the CDC has issued to railroads, airlines, casinos, sports venues, public transit, and other public gathering places.

Merryday also gave the agency until July 2 to draft a more limited order as long as it is predicated on detailed scientific evidence.

Republican Gov. Ron DeSantis of Florida. Credit: Joe Raedle/Getty Images

DeSantis — a conservative Republican noted for his appointment of like-minded judges to the state’s courts — issued a written statement praising the outcome.

“The CDC has been wrong all along, and they knew it,” he said. “The CDC and the Biden administration concocted a plan to sink the cruise industry, hiding behind bureaucratic delay and lawsuits. Today, we are securing this victory for Florida families, for the cruise industry, and for every state that wants to preserve its rights in the face of unprecedented federal overreach.”

“Today’s ruling is a victory for the hardworking Floridians whose livelihoods depend on the cruise industry,” Moody said in her own written statement.

“The federal government does not, nor should it ever, have the authority to single out and lock down an entire industry indefinitely. I am excited to see the cruise industry get sailing again, and proud to stand with Gov. Ron DeSantis against illegal federal overreach and draconian lockdown measures.”

No-sail order

The CDC issued its no-sail order in March 2020, following a series of COVID outbreaks aboard passenger liners as the pandemic established itself, effectively bottling up fleets in port. In October, it issued a conditional sailing order, which allowed ships to put to sea to test safeguards including restrictions on the number of passengers and heightened sanitation.

Additionally, the order required cruise lines to construct on-board COVID testing labs and improved ventilation systems, and to arrange for medical services in any ports of call.

The agency later floated an alternative — ships could sail if 98 percent of their crew were vaccinated and 95 percent of their passengers, counting children aged 12 and younger who are not eligible to take the shots under existing federal guidelines.

That alternative placed the order squarely in DeSantis’ gun sights, as it ran counter to a state law he pushed through the Legislature banning businesses from requiring that their customers produce proof of vaccination — so-called vaccine passports.

Although that stand drew resistance from some cruise lines, which saw such documentation as a means of protecting their passengers, the American Society of Travel Advisors supported the state’s legal challenge. The organization represents travel agents as well as cruise lines, airlines, hotels, and car-rental agencies.

“ASTA welcomes this news as a positive development for both its members and the traveling public and looks forward to full resumption of cruise line operations in Florida next month,” the group said in a written response to Merryday’s ruling.

In fact, ships have sailed using the CDC’s first option, accompanied by reports of scattered active infections among passengers and crew, as the South Florida Sun-Sentinel has reported. Carnival Cruise lines this week dropped its plan to require proof of vaccination, according to a USA Today report, although passengers must pay for coronavirus tests before sailing.

Aboard Royal Caribbean cruises departing from Florida, “all guests are strongly recommended to be fully vaccinated,” the company has said. “Based on our guest surveys, we expect 90 percent of all our guests to be fully vaccinated.” Unvaccinated guests will undergo testing and “additional health protocols at their own expense.”

Extended disquisition

Bob Jarvis, a former New York admiralty lawyer who now teaches that discipline plus constitutional law at the Nova Southeastern University College of Law in Fort Lauderdale, argued that Merryday’s decision makes no sense.

The judge is saying “that the federal government doesn’t have the power to deal with an international pandemic and I’m going to rely on 18th and 19th century practice and say that this is something that should be left up to the states,” Jarvis said

“Well, that’s a terrible idea, because that means instead of one coordinated approach that is led by the federal government … you have 50 states making the decisions. We saw how bad that was at the beginning of the epidemic, when the Trump administration left every state to fend for itself.”

He referred to Merryday’s epic, 124-page ruling, which includes an extended disquisition tracing public health law from 1796 through the Public Health Service Act of 1944 — passed to contain malaria — and beyond. The law is codified at 42 USC 264. The opinion extends the same protracted level of scrutiny to the other legal issues in the case.

Merryday even questioned whether the CDC would justify banning sex to halt transmission of HIV (more about that below).

Initially, the judge wrote, the federal government’s public-health authority was limited to inspecting incoming ships for contagion and, if necessary, quarantining them or destroying or fumigating cargo likely to introduce disease into this country.

Ashley Moody
Republican state Attorney General Ashley Moody

“Never has CDC (or a predecessor) detained a vessel for more than 15 months; never has CDC implemented a widespread or industry-wide detention of a fleet of vessels in American waters; never has CDC conditioned pratique [permission to enter a port] 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 multibillion-dollar industry nationwide. In a word, never has CDC implemented measures as extensive, disabling, and exclusive as those under review in this action,” Merryday wrote.

The CDC had challenged the state’s standing, or right to bring the lawsuit, in the first place, arguing state leaders hadn’t articulated any direct, irreparable injury. Merryday rejected those arguments, citing the loss of almost 159,000 jobs and $8.1 billion in income to the cruising industry and related enterprises throughout Florida. The state has estimated tax losses at some $82 million.

Jarvis, the Nova professor, questioned that reasoning.

“That means anytime anything happens, no matter how remote, as long as you can show the state or a county government or a city government lost even a penny of tax revenue, well, then, you would have standing,” he said.

“And that would really eviscerate the idea of standing, which is that you have a serious litigant who’s going to seriously pursue the lawsuit and make serious arguments.”

Peter Lobasso, general counsel for the travel association insisted the ruling was justified.

“To accept the government defendants’ position that the state of Florida lacks standing notwithstanding the demonstrated grave economic injury to its economy would effectively leave it without any remedy,” he said in a written statement.

“The court cites ample legal precedent supporting its conclusion that Florida established standing based on not one, but three distinct financial injuries.”

Another issue in the lawsuit was the degree of deference courts must give to agency interpretations of statues passed by Congress. Conservative legal theorists argue that Congress’ over-exuberant delegation of this authority to agencies gives too much power to unelected bureaucrats and allows Congress to dodge politically sticky decisions by handing them off to agencies.

Merryday dismissed the deference doctrine as something “which the judiciary manufactured and in which the judiciary persists.”

His ruling openly anticipates that the U.S. Supreme Court’s now-solid conservative majority will soon constrict Congress’ delegation power.

“Courts have allowed an increasing hegemony to the unelected, electorally unaccountable, and largely anonymous executive agents, comfortably housed in one of many formidable edifices in Washington, D.C., or in a regional office, and doing who knows what, for who knows what reason, and at who knows whose instigation — but always answering to no one (at least, no one that the citizenry can perceive) and always reliably defended in their pronouncements by a legion of lawyers, staff, consultants, experts, and others, as well as litigious special interest entities,” Merryday wrote.

Lobasso warned about overlooking this larger point in weighing the demands of protecting public health.

“It’s not about political expediency in the name of ‘public health,’ but rather the disregard of the plain constitutional limits on the actions of an executive branch agency, one that has asserted, and has accordingly acted, as though there are effectively no constraints on its authority,”  he said.

Sex and ‘zero’ transmission

About banning sex: Merryday posited that hypothetical in explaining why he concluded the CDC had overstepped.

“One is left to wonder, given the persistent risk of transmission of a communicable disease and, in fact, the frequent, debilitating, and sometimes deadly history of transmission of a communicable disease, whether the director of CDC could have — or, perhaps, should have — generally shut down sexual intercourse in the United States … to reduce to ‘zero,’ for example, the human-to-human transmission of AIDS or syphilis or herpes,” Merryday wrote.

“Political prudence (and difficulty of enforcement) might counsel CDC against this particular prohibition, but the statute, as understood by CDC, certainly erects no barrier.”

To Jarvis, such reasoning could tie the country’s hands in fighting COVID or any other public health risk. He cited constitutional language allowing Congress to pass “all needful laws.”

It’s true the Constitution doesn’t specifically authorize the public health steps needed to do so, but the Founders never could have imagined COVID, he continued. But they did give the government power to regulate interstate commerce and defend against external threats.

‘This international pandemic ruined our economy because it crosses state borders and it affects the entire economy of the United States. It seems to me that that is more than ample constitutional justification for the federal government to operate,” Jarvis said.

Judge Merryday also agreed with the administration that the CDC hadn’t subjected its plan to the required regulatory scrutiny, including public-notice and -comment requirements, because although it received 13,000 comments it never considered or responded to them.

Additionally, the agency failed to take account of any state or local rules that might have mitigated any danger.

“Although several of Florida’s arguments remain unpersuasive on this record, the conditional sailing order is arbitrary and capricious because the order imposes vague and shifting (but binding) legal requirements and because the order fails to offer any reasoned explanation about the inadequacy of local measures,” he wrote.

The CDC could still take the matter to trial on the merits of its case, or appeal, but Jarvis doesn’t think that will happen, given the hard line Merryday has drawn and the dim prospect of success before the “Trump-stacked” U.S. Court of Appeal for the 11th Circuit and Supreme Court.

“All we have right now is an opinion by a judge dealing with a specific industry in one state,” Jarvis said.

“Rather than turning that into an actual precedent, let’s drop this, let DeSantis and the state of Florida do what they want to do so that we keep our powder dry for a future pandemic when we might be in a more favorable climate, where the composition of the Supreme Court might have changed by then.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.