Case Information
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
STATE OF FLORIDA,
Plaintiff, v. CASE NO. 8:21-cv-839-SDM-AAS XAVIER BECERRA, et al.,
Defendants.
__________________________________/
ORDER
In response to incidents of COVID-19 infection aboard cruise and naval vessels in early 2020, the Centers for Disease Control and Prevention (CDC) issued a series of “no-sail orders” that halted the cruise industry’s operation from March 2020 through October 2020. Effective October 30, 2020, CDC issued a “conditional sailing order,” the stated purpose of which is to safely re-open the cruise industry under a four-phased “framework.”
In this action Florida asserts five claims. In Count I, Florida alleges that the conditional sailing order exceeds CDC’s statutory and regulatory authority. (Doc. 1 at 13–15) In Count II, Florida alleges that CDC acted arbitrarily and capriciously in issuing the conditional sailing order. Specifically, Florida argues in Count II that CDC failed to recognize the prevalence of vaccines, the success of foreign sailing, the effectiveness of COVID-19 mitigation measures, and the opportunities revealed by evolving public health research — all of which would counsel against the restrictions imposed by the conditional sailing order.
Also, Florida argues in Count II that CDC arbitrarily failed to consider “lesser alternatives,” treated the cruise industry differently from other industries, and ignored local health measures. (Doc. 1 at 15–18) In Count III, Florida alleges that CDC unreasonably delayed agency action necessary “to allow the cruise industry to safely re-open.” (Doc. 1 at 18) In Count IV, Florida alleges that CDC failed to conduct proper notice and comment rulemaking and improperly relied on the “good cause” exception to the notice requirement under 5 U.S.C. § 553(b)(B). Finally, in Count V, Florida alleges that if interpreted according to CDC the enabling statute, 42 U.S.C. § 264, on which CDC relies, effects an unconstitutional delegation of legislative authority. (Doc. 1 at 20) Facing an allegedly irreparable injury, Florida moves (Doc. 25) for a preliminary injunction.
Citing four broad arguments, CDC opposes a preliminary injunction. First, CDC argues that Florida lacks standing because the conditional sailing order regulates cruises, not states. Second, CDC argues that Florida cannot establish irreparable harm because Florida began this action months after CDC issued the sailing order and that, because cruises can sail by mid-summer, Florida cannot establish an imminent and irreparable injury. Third, CDC contends the conditional sailing order falls within CDC’s statutory and regulatory authority. Fourth, CDC contends that the conditional sailing order evinces “reasoned decision-making” and reasonable conclusions, “especially given the extraordinary deference due to [CDC] during the ongoing public health emergency.” Finally, CDC claims that the threat of future COVID-19 infections aboard cruises decisively outweighs any economic injury to Florida. (Doc. 31 at 3–4)
BACKGROUND
Since early in 2020 COVID-19 reportedly has killed more than half a million Americans and has caused millions to become unemployed. In response to the discovery of COVID-19 aboard several cruise ships and naval vessels in early 2020, the Cruise Line International Association, a trade group including 95% of the cruise industry, on March 13, 2020, voluntarily ceased cruise ship operation. (Doc. 1-3 at 9; Doc. 31 at 2) On March 14, 2020, CDC issued a no-sail order that halted the cruise industry “for all cruise ships not voluntarily suspending operations.” (Doc. 1-4 at 7) CDC extended the no-sail order on April 15, 2020; July 16, 2020; and September 30, 2020. The last extension of the no-sail order expired October 31, 2020. (Docs. 1-5, 1-6, and 1-7)
On July 20, 2020, during the second extension of the no-sail order, CDC published in the Federal Register a “Request for Information” about the safe resumption of cruise ship operation. 85 Fed. Reg. 44083 (2020); (Doc. 1-3 at 14). The request prompted about thirteen thousand responses in the allowed sixty-days, which ended about six weeks before CDC issued the conditional sailing order. Although CDC claims to have “carefully considered” the comments, CDC never responded to the comments, chose to issue the conditional sailing order under the “good cause” exception to the “notice and comment” requirement of the APA, and announced that “it would be impracticable and contrary . . . to the public’s interest” to delay the effective date of the order. [1] (Doc. 1-3 at 15, 19); 5 U.S.C. §§ 553(b)–(d). A. The Conditional Sailing Order
On October 30, 2020, CDC issued the conditional sailing order. Framework for Conditional Sailing and Initial Phase COVID-19 Testing Requirements for Protection of Crew . (Doc. 1-3); 85 Fed. Reg. 70153 (2021). The conditional sailing order opens by explaining that COVID-19 “continues to spread rapidly around the world with no U.S. Food and Drug Administration authorized vaccine.” (Doc. 1-3 at 8) Therefore, “[b]ased on the evidence gathered and explained in the No Sail Order,” as well as “[c]urrent scientific evidence,” (Doc. 1-3 at 12–13), the conditional sailing order continued to restrict cruise ship [2] travel despite the measures, such as a “Healthy Sail Panel,” assembled by prominent cruise companies and top health experts [3] employed by cruise companies to address COVID-19. (Doc. 1-3 at 13–14)
Disclaiming that the conditional sailing order constitutes a rule under the APA (Doc. 1-3 at 19) and incorporating by reference the earlier no-sail orders, the conditional sailing order explains that “[a]fter expiration of CDC’s No Sail Order (NSO) on October 31, 2020, CDC will take a phased approach to resuming cruise ship passenger operations in U.S. waters.” (Doc. 3-1 at 2) The conditional sailing order requires the completion of four phases before a vessel again qualifies to sail but explains that “[t]hese phases are subject to change based on public health considerations[.]” (Doc. 3-1 at 3) And the conditional sailing order explains (in several places) that “CDC will issue additional orders as needed that will be published in the Federal Register and technical instructions that will be subsequently posted on CDC’s website.” (Doc. 3-1 at 3, 21, 28, 34)
1. The Four Phases
Phase one obligates a cruise ship operator to build a laboratory aboard each vessel for testing crew members. In phase two, a cruise ship operator must undertake for each cruise ship a simulated voyage designed to evaluate the cruise ship operator’s on-board COVID-19 mitigation measures. (Doc. 1-3 at 26–7) However, before beginning a cruise ship’s first simulated voyage, the cruise ship operator must obtain, and CDC must approve, a “medical care agreement” and a “housing agreement” with health care providers and the port authority in each port- of-call to ensure adequate logistics and care if COVID-19 appears aboard a ship in transit. [4] (Doc. 1-3 at 23–4)
Phase three requires a “conditional sailing certificate” from CDC before a cruise ship operator undertakes a restricted passenger voyage. During this phase, a cruise ship operator must apply for a conditional sailing certificate “at least 60 calendar days prior to the date on which the cruise ship operator proposes to commence restricted passenger operations.” (Doc. 1-3 at 29, n.18) Under the threat of a criminal penalty imposed by 18 U.S.C. § 1001, the application must include the cruise ship operator’s attestation to, among other things, the operator’s compliance with CDC’s (mandatory) technical instructions and orders. (Doc. 1-3 at 29–30) After CDC review, even if CDC awards the operator a conditional sailing certificate, “CDC may limit the terms or conditions of a . . . Conditional Sailing Certificate” or revoke the certificate altogether. (Doc. 1-3 at 30, 35) A cruise ship operator can appeal the denial of a certificate or can attempt to modify the conditions of a certificate by submitting the proposed modification to CDC. (Doc. 1-3 at 32, 36)
Finally, for operators with a conditional sailing certificate, phase four permits “restricted passenger voyages” — but subject to several salient strictures, including a seven-day limitation on each voyage. (Doc. 1-3) The conditional sailing order describes other requirements beyond the four-phased approach, and the conditional sailing order explains that the phases “will be further determined” by both “public health considerations” and a cruise ship operator’s success in employing the mitigation measures specified in the conditional sailing order, including shoreside laboratory screening of crew, on-board testing capabilities for symptomatic travelers, sustained compliance with the no-sail orders’ response plans, and the frequent monitoring and reporting of conditions onboard. (Doc. 1-3 at 17) In other words, even after a cruise operator’s completion of the four phases, CDC retains unrestricted discretion to further condition or even suspend the conditional sailing certificate and to issue additional and different technical guidance.
2. The Conditional Sailing Order’s Timeline, Findings, and Legal Justifications
The feasible timeline for a cruise company’s accomplishing the four phases is unknown but certainly protracted. (As of today, few vessels have completed the four phases.) The conditional sailing order remains effective until the earliest of (1) the expiration of the HHS Secretary’s declaration of a public health emergency, (2) the rescission or modification of the order by the CDC director, or (3) November 1, 2021 (at which time CDC might renew the conditional sailing order or issue a replacement order with additional and different requirements). In other words, assuming maintenance of the status quo, the conditional sailing order likely, almost certainly, will remain in effect for a year after the October 2020 issuance of the conditional sailing order, that is, the cruise industry will have remained subject to the series of no-sail orders and the conditional sail order for more than nineteen months — two full cruise seasons — and will remain subject to renewal (presumably without “notice and comment” under the APA).
3. Dissatisfaction with CDC’s Implementation and Guidance After issuance of the conditional sailing order, several uncertain and distressed cruise companies and public officials began to complain because CDC issued virtually no implementing instructions for beginning the simulated voyages and no cruise company was authorized to begin a phase two simulated voyage. And even after CDC issued new guidance on April 2, 2021, cruise executives, state officials, and others criticized the guidance as impractical.
For example, the Cruise Lines International Association reports that the April 2, 2021 guidance imposes requirements that “are unduly burdensome, largely unworkable, and seem to reflect a zero-risk objective rather than the mitigation approach to COVID that is the basis for every other U.S. sector of our society.” (Doc. 45-9 at 2; Doc. 45-10 at 6; Doc. 45-28 at 3) Concerned about losing another summer sailing season, some cruise companies threatened to leave the United States if the cruise industry cannot “gain clarity and alignment on what it will take to restart cruising from the [United States].” (Doc. 45-10 at 10–11; Doc. 45-28 at 4; Doc. 45-29) Florida asserts that “the cruise industry needs certainty so they can make ready to resume sailing.” (Doc. 56 at 5) But as of April 2021, more than six months after issuance of the conditional sailing order, “no cruise company ha[d] begun phase two test voyages,” and more than “20% of cruise lines remained stuck in Phase 1.” (Doc. 56 at 5–7; Doc. 25 at 6–7, 17)
B. Florida’s Complaint, Florida’s Motion for a Preliminary Injunction, and
Recent Developments
Contending that the April 2, 2021 (mandatory) guidance and CDC’s delay ensure “that the cruise industry would not re-open” in time for the summer season, Florida sued six days later and moved for preliminary injunction. (Doc. 56 at 2)
On May 5, 2021, the day CDC’s response to the motion for preliminary injunction was due, CDC issued technical guidance supposedly “providing specific instructions for how cruise ship operators may test their health and safety protocols in U.S. waters through simulated voyages, including the requirements for simulated voyages, guidance for CDC inspections, and operational procedures for risk mitigation on simulated and restricted voyages.” (Doc. 31 at 11; Doc. 46-4; Doc. 46-5) CDC asserts that “cruise ship operators now have all the necessary instructions” to begin sailing. (Doc. 31 at 11) Further, in a “Dear Colleague Letter,” CDC announced a “commitment to the phased resumption of passenger operations around mid-summer.” (Doc. 31 at 10; Doc. 46-3) Addressing “scientific developments” since CDC issued the conditional sailing order, the letter offers several “clarifications,” including an allowance for a cruise ship to avoid the requirement of a simulated voyage if a cruise operator’s crew is ninety-eight percent fully vaccinated and the passengers, including children twelve and under, are ninety- five percent fully vaccinated. (Doc. 46-3 at 5)
Commenting on the May 5 technical guidance and the “Dear Colleague Letter,” one cruise executive explained that “he seriously doubt[s]” whether cruise ships could sail from the United States this summer because CDC’s guidance remains “anything but a clear path to restarting.” (Doc. 56 at 4) Since May 5, CDC has frequently updated the technical instructions and published new guidance for complying with the conditional sailing order. (Doc. 72 at 5) CDC supposedly updates this technical guidance to “reduce[] burdens or alleviate[] restrictions on cruise lines to better reflect the improved public health situation.” [5] (Doc. 72 at 5; Doc. 72-1) But CDC retains the discretion to issue at any time “additional requirements through technical instructions or orders relating to a cruise ship operator’s processes and procedures.” (Doc. 1-3 at 21, 28, 29)
As of June 4, 2021, CDC had approved port agreements for twenty-two ships. CDC has scheduled only nine ships to begin simulated voyages. Although two simulated voyages are predicted to begin on June 20, 2021, most of the simulated voyages begin in July or August. Of the estimated fifty-nine eligible cruise ships, only two ships have received conditional sailing certificates, both for “highly vaccinated voyages,” that is, ships that satisfied the 98%–crew plus 95%–passenger, full-vaccination option mentioned earlier. (Doc. 31 at 9; Doc. 72 at 5) One of those two ships can begin restricted sailing no earlier than June 26, 2021. The other ship can begin restricted sailing no earlier than July 25, 2021. (Doc. 72-1 at 2–3) All other cruise ships remain in the conditional sailing order’s earlier phases.
C. Litigation Status
After an initial hearing (Doc. 44) on Florida’s motion for a preliminary injunction, a May 18, 2021 order (Doc. 51) referred this action to mediation. In the meantime, Alaska and Texas moved (Docs. 26, 68) to intervene in this action. Arguing, among other reasons, that Alaska and Texas lack standing to intervene, CDC opposes (Docs. 57, 83) the motions to intervene. Alaska’s and Texas’s motions to intervene are unresolved.
CDC submits a supplemental brief (Doc. 72) to report that on May 24, 2021, Congress passed the Alaska Tourism Restoration Act, which CDC contends effectively “ratifies” the conditional sailing order. (Doc. 72 at 1–4) Also, CDC reports “factual developments” that allegedly confirm the cruise ships’ expeditious progress through the conditional sailing order’s phases. (Doc. 72 at 5–6) Florida submits a supplemental brief (Doc. 82) in response. After a hearing (Doc. 84) on the supplemental briefs and after the mediator declared an impasse (Doc. 85), Florida’s motion for a preliminary injunction is ripe for determination.
STANDING
Article III of the United States Constitution limits the jurisdiction of a federal
court to an actual, perceptible, and existing case or controversy. To present a
justiciable case or controversy for a preliminary injunction, a plaintiff must establish
by a “clear showing” each element of “standing.”
Winter v. Nat. Res. Def. Council,
Inc
.,
First, Article III imposes constitutional standing, an “irreducible [ ]
minimum” requiring a plaintiff to show an injury-in-fact that is both fairly traceable
to an act of a defendant and redressable by a favorable judicial decision.
Lujan v.
Defenders of Wildlife
,
A. Article III Standing
1. Injury-in-Fact
If requesting an injunction, a plaintiff must establish an immediate danger of
sustaining a “concrete” and “particularized” injury. Adducing a “concrete” and
“particularized” injury requires the plaintiff to establish a risk of “imminent” future
injury, not a “conjectural” or “hypothetical” injury.
City of Los Angeles v. Lyons
, 461
U.S. 95, 102 (1983). A future injury qualifies as “imminent” if the plaintiff faces a
“sufficient likelihood” of suffering the alleged injury.
Sierra v. City of Hallandale
Beach, Fla
.,
Whether a sufficient likelihood exists that a state will suffer an imminent
injury depends on the capacity under which the state sues. Erwin Chemerinsky,
Federal Jurisdiction
125 (8th Ed. 2021) (“[A] distinction must be drawn between
a government entity suing to remedy injuries it has suffered and suing in a
representative capacity on behalf of its citizens.”). A state cannot sue as a nominal
party or sue to defend the “personal claims” of a citizen.
Pennsylvania v. New Jersey
,
“There is no difficulty in recognizing [a state’s] standing to protect
proprietary interests or sovereign interests.” 13B W RIGHT & M ILLER , F ED . P RAC . & P ROC . § 3531.11.1, Government Standing – States (3d ed. 2008). A state’s
proprietary interests include “participat[ing] in a business venture” and extend to
interests that are the same as a similarly situated private proprietor.
Alfred L. Snapp
,
First, Florida asserts that the conditional sailing order forces Florida to spend millions of dollars more than usual on state unemployment benefits. A declarant from Florida’s Department of Economic Opportunity reports — and CDC accepts — that since the start of the COVID-19 pandemic, Florida has paid about $20 million in state benefits directly attributable to “claimants separated from the cruise industry.” In comparison, Florida typically pays less than $500,000 annually in state benefits attributable to lost cruise-industry jobs. [6] (Doc. 45-19 at 2)
Second, Florida claims that since the start of the COVID-19 pandemic Florida’s ports have lost hundreds of millions of dollars. (Doc. 45-26) Florida insists that at least part of the loss results directly from the shutdown of the cruise industry, which accounts for a major share of Florida’s port business. (Doc. 45-20 at 5; Doc. 45-21 at 25; Doc. 45-22 at 9; Doc. 45-23 at 23; Doc. 45-24)
Third, Florida claims a loss of tax revenue directly attributable to the shutdown of the cruise industry in Florida. (Doc. 25 at 22) For example, Florida attaches reports analyzing the economic activity of several ports and detailing state tax revenue derived from the cruise industry. (Docs. 45-20, 21, 22, 23) These economic reports suggest that in a typical year Florida collects millions of dollars in state taxes from the cruise industry. (Doc. 45-20 at 44; Doc. 45-21 at 29; Doc. 45-22 at 10; Doc. 45-23 at 36; Doc. 45-24 at 27) Further, Florida estimates — and CDC again accepts — that the “continued closure of the cruise industry will result in an annual loss to Florida of sales tax revenue of approximately $82 million.” (Doc. 45-25 at 3)
CDC responds by characterizing Florida’s injury as a loss of “general tax
revenue” that creates no basis for standing. (Doc. 31 at 14) (quoting
El Paso Cty.,
Texas v. Trump
,
Although superficially appealing, CDC’s argument is finally unpersuasive.
CDC ignores Florida’s evidence establishing an economic injury attributable to
increased unemployment spending for former cruise industry employees, some of
whom likely will remain unemployed. “Monetary expenditures to mitigate and
recover from harms that could have been prevented absent [agency action] are
precisely the kind of ‘pocketbook’ injury that is incurred by the state itself.”
Air All.
Houston
,
Although the conditional sailing order purports to establish “a framework for
a phased resumption of cruise ship passenger operations,”
In sum, Florida establishes a strong likelihood that many or almost all cruise
ships will remain unable to sail for the entire summer season.
[9]
And each day the
cruise industry faces uncertainty about when cruises can resume, Florida not only
suffers a concrete economic injury resulting from reduced revenue and increased
unemployment spending, but Florida faces (Doc. 45-17; Doc. 45-28; Doc. 45-29) an
increasingly threatening and imminent prospect that the cruise industry will depart
the state. (Doc. 45-10 at 10–11; Doc. 45-28) The dislocation of all or most of an
entire industry subjects Florida to a protracted or permanent loss of revenue from
one of Florida’s largest industries, the benefits of which insinuate themselves into the
heart of Florida’s economy. (Doc. 45-1 at 45–47, 75);
Alfred L. Snapp
, 458 U.S. at
597–610 (considering Puerto Rico’s interest in its citizens participating in an
industry). Florida faces a sufficient likelihood of continued economic harm to
establish a concrete and imminent injury-in-fact.
Salcedo v. Hanna
,
2. Causation and Redressability
Also, Florida must establish that Florida’s imminent injury is “fairly
traceable” to the conditional sailing order and that a favorable judicial decision can
likely redress the injury.
Lujan
,
But even if other “variables” contribute to Florida’s injury, Florida can
establish standing by showing that the conditional sailing order accounts for some of,
or aggravates, Florida’s injury.
Attias v. Carefirst, Inc.
,
Citing the success of foreign cruise lines, Florida shows that thousands of
passengers, including Floridians, have sailed on cruise ships abroad. (Doc. 45-9;
Doc. 45-10, Doc. 45-29 at 13) And after shepherding Florida’s residents through a
measured plan for relaxing restrictions, distributing vaccines, and installing COVID-
19 safety protocols, Florida now experiences renewed demand for sailing (among
many other things). (Doc. 45-3; Doc. 45-25; Doc. 45-29; Doc. 46-1; Doc. 56 at 4,
n.4) Despite CDC’s speculation to the contrary, no reasonable basis exists to believe
that without the conditional sailing order the cruise industry will refrain from sailing
(if the industry will not sail, removing the conditional sailing order is harmless).
Dep’t of Com. v. New York
,
CDC argues that a favorable decision will not necessarily redress Florida’s
injury because a future “outbreak” might amplify Florida’s injury. (At the second
hearing, CDC explained that an “outbreak” means as little as a single — one —
human-to-human “transmission” of the disease.) (Doc. 31 at 17–18) But the
conditional sailing order imposes regulations “in addition to other requirements
in regulations or actions taken by CDC.” (Doc. 1-3 at 20) For example, CDC’s
operations manual for simulated and restricted voyages requires cruises to continue
following the “Vessel Sanitation Program.”
[10]
Florida describes voluntary
precautions, including testing, distancing, and ventilation, that the cruise industry
and Florida ports have instituted to mitigate COVID-19, which steadily subsides
with the rapid administration of vaccines, abundantly and readily available in
Florida. (Doc. 56 at 17–20) In fact, CDC admits that the wide availability of
vaccines “will play a critical role in the safe resumption of passenger operations.”
(Doc. 46-1 at 26) (CDC admits to never evaluating the efficacy of the measures
instituted locally.) Because the cruise industry worldwide has developed and
deployed precautions to combat COVID-19 and to contain any infection, no
reasonable basis exists to believe that Florida faces a greater or equivalent injury if
sailing resumes. And a decision favorable to Florida, enjoining all or part of the
conditional sailing order, will allow cruises to sail more quickly and will mitigate
the imminent likelihood of Florida’s injury, including the plausible and imminent
prospect of the cruise industry’s leaving Florida.
Massachusetts v. E.P.A.
, 549 U.S.
497 (2007) (citing
Larson v. Valente
,
In addition to Article III standing, in an APA action Florida must establish
statutory standing, which “extends only to plaintiffs whose interests ‘fall within
the zone of interests protected by the law invoked.’
” Lexmark Int’l, Inc. v. Static
Control Components, Inc.
,
But a plaintiff suing under the APA must assert an interest only “arguably
within the zone of interests [] protected or regulated by the statute” the plaintiff
claims the defendant violated.
Match–E–Be–Nash–She–Wish Band of Pottawatomi
Indians v. Patchak
,
Here, the applicable sections of the Public Health Service Act anticipate Florida’s interest in this action. By impeding commerce, encumbering or destroying property, or restricting or forbidding the movement of persons or things, measures promulgated by CDC under Section 264(a) necessarily strain the economy of a state, especially a state historically and deeply dependent on recreational, seasonal, and other visits by a multitude of persons from throughout the nation and from abroad and dependent on the resulting income from the accompanying services and products offered in Florida.
To enforce CDC regulations, Section 243 contemplates “comprehensive and
continuing” cooperation with state authorities. Contemplating a regulation’s effect
on state public health measures, 42 C.F.R. § 70.2 requires CDC to determine before
imposing federal regulation that a state fails to enforce sufficient health measures.
In short, the Public Health Service Act anticipates an effect on a state. By suing to
avoid or mitigate the effect caused by the statute, Florida establishes statutory
standing.
Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev
.,
Also, Florida claims in Count I that the conditional sailing order imposes
restrictions exceeding CDC’s statutory and regulatory authority. (Doc. 1 at 13)
By claiming that CDC acts
ultra vires
, Florida avoids the requirements of statutory
standing.
Chiles v. Thornburgh
,
LIKELIHOOD OF SUCCESS ON THE MERITS
Determining Florida’s likelihood of success on the merits requires analysis of Florida’s allegations and their evidentiary and legal support. Each of Florida’s claims will receive attention to determine, based on the present record, Florida’s likelihood of success on the merits.
A. Count I and Count V
Florida argues that the conditional sailing order exceeds the statutory and regulatory authority delegated to CDC, which argues in response that the conditional sailing order fits perfectly within the measures contemplated by the statutes and regulations. The history of the federal government’s quarantine power clarifies the extent of the authority codified in the text.
1. The History of the Federal Government’s Quarantine Powers To contextualize CDC’s asserted statutory and regulatory authority, CDC provides a brief historical account of the federal government’s “acting to combat the spread of communicable disease.” [12] (Doc. 31 at 4–5) Citing a federal quarantine law from 1796, CDC observes that “[t]he federal government has a long history of acting to combat the spread of communicable disease.” [13] (Doc. 31 at 5) However, CDC’s generalization omits much that is necessary to fully portray the role of the federal government.
In the early years of the republic, the federal role in curbing infectious disease extended to little more than support for the effort of local government. C ENTERS FOR D ISEASE C ONTROL & P REVENTION , History of Quarantine (Feb. 12, 2007), www.cdc.gov/quarantine/historyquarntine.html (“Protection against imported diseases fell under local and state jurisdiction[, and i]ndividual municipalities enacted a variety of quarantine regulations for arriving vessels.”). In fact, the statute CDC cites to demonstrate federal involvement authorized the president to direct federal officers to aid in the enforcement of only state quarantine law. Act of May 27, 1796, 4 Cong. Ch. 31, 1 Stat. 474 (1796) (repealed 1799). And even though CDC observes that “Congress replaced this Act with a federal inspection system for maritime quarantines” (Doc. 31 at 5), this federal inspection system — initially implemented by the Marine Hospital Service, a predecessor to the Public Health Service [14] — principally provided health care to ill seamen and reinforced the federal government’s position as only an assistant to the states. [15] See U.S. N AT ’ L L IB . OF M ED ., Images from the History of the Public Health Service: Disease Control and Prevention , www.nlm.nih.gov/exhibition/phs_history (“The major function of the Marine Hospital Service until the 1870s remained the care of sick seamen.”).
For roughly a hundred years the states principally exercised the quarantine
power, understood as a component of the police power of the states.
Gibbons v.
Ogden
,
In the mid- to late-nineteenth century, amid outbreaks of yellow fever
and cholera, many began criticizing a perceived inefficiency of differing state
quarantine laws, and the federal government assumed a more active role in
quarantine measures, such as the inspection of arriving vessels and passengers at
ports of entry. A SSISTANT S URGEON G ENERAL R ALPH C HESTER W ILLIAMS , M.D., T HE U NITED S TATES P UBLIC H EALTH S ERVICE : 1798-1950, at 80 (Commissioned
Officers Association of the United States Public Health Service 1951). For example,
in 1878, Congress enacted the first quarantine law empowering the federal
government to wield quarantine measures apart from the states and installed the
Marine Hospital Service as the primary agency to inspect “vessel[s] . . . coming
from any foreign port . . . where any contagious or infectious disease may exist.”
Act of Apr. 29, 1878, 45 Cong. Ch. 66. During this era, the federal government’s
quarantine authority remained controversial, and some state and local health
officials (especially from New York, New Orleans, and South Carolina) fiercely
opposed federal interference in quarantines managed by the states.
[16]
Aiming to
support the federal government’s authority despite this opposition, Congress
expansively construed and aggressively employed the Commerce Clause, and the
Supreme Court continually acquiesced.
Bartlett v. Lockwood
,
Although federal law slowly ascended over state quarantine law if a conflict arose, the federal government’s measures still were bridled by economic considerations and by a wholesome allotment of respect for federalism. Further, the federal government expressly lacked the authority to interfere with a state’s quarantine law or regulation. [17] Act of Apr. 29, 1878 (“[T]here shall be no interference in any manner with any quarantine laws or regulations as they now exist or may hereafter be adopted under State laws.”); see W ILLIAMS , P UBLIC H EALTH S ERVICE , at 82–3, 156–62 (describing the cooperative relationship between the federal and state government and the federalist system of public health regulation). Also, the mid- to late-nineteenth century saw changes in the method of inspecting and quarantining an incoming vessel from a foreign port; three of the changes merit consideration.
First, quarantine stations were critical during this era, and the federal government began exercising greater control over quarantine stations. CDC, History of Quarantine . Situated outside a port, a quarantine station housed medical officers whose duty was to determine a vessel’s previous travel and to examine travelers and cargo for signs of communicable disease. W ILLIAMS , P UBLIC H EALTH S ERVICE , at 80–1. An arriving vessel was required to anchor at a port’s quarantine station and to receive an officer aboard for these inspections. And if a vessel had arrived from a port with an extensive outbreak of a disease or if a traveler exhibited symptoms, a more exacting inspection occurred and temporary detention might result. W ILLIAMS , P UBLIC H EALTH S ERVICE , at 80. But detention of a vessel was disfavored and almost invariably lasted only for the duration of the disease’s incubation period (typically from five to twenty days). [18] W ILLIAMS , P UBLIC H EALTH S ERVICE , at 73–83. The federal government gradually began acquiring and establishing quarantine stations, and New York transferred the last quarantine station to the federal government in 1921. W ILLIAMS , P UBLIC H EALTH S ERVICE , at 80; CDC, History of Quarantine .
Second, if the quarantine officer declared the vessel disease-free, the officer issued to the vessel a “pratique” or “provisional pratique.” W ILLIAMS , P UBLIC H EALTH S ERVICE , at 80. A pratique permitted a vessel to enter and operate in a port. By contrast, a provisional pratique permitted a vessel to enter the port only after completing some narrow and discrete task, typically fumigation of cargo or the like.
Third, Congress further federalized the quarantine power by adopting a “bill of health” system. In 1893, Congress enacted the “last significant quarantine legislation before the [ ] enactment of the Public Health Service Act in 1944,” W EN S HEN , S COPE OF CDC A UTHORITY U NDER S ECTION 361 OF THE P UBLIC H EALTH S ERVICE A CT , at 8 (Congressional Research Service, 2021), which conscripted the Marine Hospital Service to, among other things, obtain a “bill of health” from a vessel arriving from abroad. [19] Act of Feb. 15, 1893, 52 Cong., Ch. 114. The bill of health, obtained from a U.S. “consular officer . . . at the port of departure,” was required to “set[ ] forth the sanitary history and condition of [a] vessel” and to affirm the vessel’s compliance with sanitation rules and regulations. Upon arrival at a U.S. quarantine station, a vessel would display the bill of health to a quarantine officer. See A LEX C HASE -L EVENSON , T HE Y ELLOW F LAG : Q UARANTINE AND THE B RITISH M EDITERRANEAN W ORLD , 1780-1860, at 13–16 (Cambridge Univ. Press, 2020) (discussing the development of these practices). Although later abandoned and replaced by casual “radio pratique” practices in 1985, 42 C.F.R. § 71.11, the bill of health served as an important quarantine tool during this period.
Among the more “extreme” regulatory conduct initiated in the late nineteenth century, the Surgeon General (1) issued a circular temporarily forbidding “[v]essels from cholera-infected districts” from entering a port without a “certificate of disinfection”; [20] (2) banned temporarily the importation of discrete items, such as “rags, furs, skins, hair, feathers, boxed or baled clothing or bedding, or any similar article,” unless the vessel operator furnished a certificate of disinfection; [21] and (3) declared “under the laws of the several States” a twenty-day quarantine of all ships “from any foreign port carrying immigrants.” [22] See V ICTORIA B ENNETT , M EDICAL E XAMINATION OF A LIENS : A P OLICY WITH A ILMENTS OF ITS O WN ?, 12 U. A RK . L ITT . R OCK L.J. 739, 741–42 (1989) (discussing the three policies mentioned above). However, more common measures included rapid inspection and sanitation. For instance, when a rag, bag, or other item was suspected of infection, the item was “subjected to a process of disinfection,” typically either steaming or fumigation. Treasury Dep’t, Circular on Vessels from Cholera-Infected Districts, Vol. 7, No. 29 (July 15, 1892).
After the turn of the century, as states and courts persisted in regarding quarantine authority as firmly within the domain of the states, [23] World War I severely depleted the Public Health Service’s [24] resources and forced the Public Health Service to streamline quarantine practice. For example, in 1937, the Public Health Service began to permit “radio pratique,” which authorized quarantine stations to issue a pratique without first inspecting a vessel if the vessel’s operator declared in advance the health of the vessel. W ILLIAMS , P UBLIC H EALTH S ERVICE , at 99. Nevertheless, despite strained resources in the early twentieth century, the federal government’s quarantines continued “by a process of accretion and erosion.” Sidney Edelman, International Travel and Our National Quarantine System , 37 T EMP . L. Q. 28, 35 (1963).
Amid disquiet about the spread of malaria, Congress in 1944 passed the Public Health Service Act, the statute central to this action. Rather than conferring new duties, the Public Health Service Act largely organized, consolidated, and clarified the federal government’s existing legal authority, as CDC observes. [25] (Doc. 31 at 5) Also, the Public Health Service Act maintained the Public Health Service’s management of quarantine stations, confirmed a vessel operator’s duty to furnish a bill of health if required, formalized the cooperative dynamic between health officials of the federal and state governments, and codified other powers. [26] Yet the measures — inspection, fumigation, disinfection, sanitation, pest extermination, and similar measures — introduced by the Public Health Service Act accorded comfortably with historical precedent.
Although the enactment of the Public Health Service Act represented a crest for the federal government’s quarantine power, quarantine regulation looked virtually the same as the regulation at the turn of the century, and the decades following the Public Health Service Act witnessed a distinct and unmistakable lull in federal quarantine regulation. Shen, Scope of CDC Authority Under Section 361 , at 11 (discussing the “more limited exercise of agencies’ Section 361 authority” in light of medical advances, such as vaccines). For instance, routine inspections waned, and vessels and cargo became exempt from inspection unless infection was found first. 38 Fed. Reg. 16,861 (1973). Also, the role of quarantine stations decreased. CDC, History of Quarantine . When in 1967 an organizational restructuring caused CDC to share control over federal quarantine power, CDC controlled fifty-five quarantine stations dispersed throughout the major points of entry into the United States. In the 1970s, CDC pruned the quarantine program to shift focus from inspections to surveillance and program management. CDC, History of Quarantine . Consequently, only seven quarantine stations remained by 1995. This regulatory relaxation culminated in the regulations discussed in this order.
Although re-organizing the quarantine-station system and expanding to twenty quarantine stations after the 2003 epidemic of SARS (severe acute respiratory syndrome), CDC’s quarantine regulation during the past fifty years was largely episodic and limited to an ad hoc response to an acute circumstance. For example, in 1975 after gastrointestinal illness became more widespread on cruise ships, CDC’s quarantine division launched the Vessel Sanitation Program under Section 264. Yet the voluntary Vessel Sanitation Program was a “cooperative activity between the cruise ship industry and the CDC,” the program was financed by a fee charged to each cruise vessel, and the program’s enforcement mechanism was slight and largely impelled by insurance incentives. [27] C ENTERS FOR D ISEASE C ONTROL & P REVENTION , Vessel Sanitation Program Operations Manual , at ii (2018). The Vessel Sanitation Program exhibits the attributes of the more recent employment of the quarantine power, which is markedly more limited in scope than the power exercised at the beginning of the twentieth century.
In sum, the 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, 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 (Doc. 31 at 5), and
“over the 20th and into the 21st century, the legislative framing for quarantine has
remained relatively constant.” Donohue,
Biodefense and Constitutional Constraints
,
at 156. 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
,
2. 42 U.S.C. § 264
The text of the Public Health Service Act lends support to a narrower quarantine power for CDC. The provision of the Public Health Service Act that most directly addresses quarantine and inspection is 42 U.S.C. § 264(a). Congress enacted Section 264(a) to delineate the contours of the authority intended for the Secretary of Health and Human Services and, consequently, for CDC:
The Surgeon General, [28] with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
Section 264(a) is best understood by displaying the second sentence as the sentence’s grammatical structure dictates:
For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such
(1) inspection,
(2) fumigation,
(3) disinfection,
(4) sanitation,
(5) pest extermination, (6) destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and
(7) other measures,
as in his judgment may be necessary. A perhaps important observation is that items (1) through (7) form a grammatical series succinctly expressed as “1, 2, 3, 4, 5, 6, and ‘other measures.’” If an “and” were to appear between (5) and (6), the sentence becomes “1, 2, 3, 4, 5, and 6, and other measures.” (The comma after 6, which appears in the statute, is grammatically superfluous in this hypothetical version.) The two versions deliver different results. The principal difference is that in the former version (the real version) the words “of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings” apply only to “destruction” and not to inspection, fumigation, disinfection, sanitation, or pest extermination, none of which requires a preliminary “finding” of “dangerous infection,” as “destruction” requires. Also, the word “article” (which CDC construes to include a cruise line vessel and any other object) pertains only to “destruction” but not to “inspection” and the other terms in the series.
CDC interprets the provision to confer almost boundless authority; Florida interprets this provision more narrowly. The parties’ dispute presents a controlling question of statutory interpretation.
i. The Parties’ Interpretations Florida argues that CDC’s conditional sailing order exceeds the authority granted by the statute. Relying on several canons of construction, especially ejusdem generis , noscitur a sociis , and the canon of constitutional avoidance, Florida argues that Section 264(a)’s “second sentence clarifies the narrow nature of the CDC’s authority.” (Doc. 9 at 9) Thus, on Florida’s reading, Section 264(a) confines CDC’s actions to those that resemble or have scope and attributes similar to “inspection, fumigation, disinfection, sanitation, or pest extermination,” and CDC may pursue one or more of those discrete actions or a similar discrete action. In other words, the second sentence exemplifies the action Congress authorized in the first sentence. That is, the second sentence provides examples that delimit the action contemplated by Congress in the first sentence. And given the practically unlimited authority asserted by CDC, Florida argues that CDC fails to identify a clear statement from Congress granting the broader authority. (Doc. 9 at 10)
CDC argues that the “other measures” clause in Section 264(a) confers on CDC “broad authority” to enact and enforce regulations and pursue remedies, limited only to the director’s determination that the measure is “necessary” to prevent transmission of a communicable disease. (Doc. 31 at 23) According to CDC, because Section 264(a)’s plain language exhibits “a legislative determination to defer to the ‘judgment’ of public health authorities” (Doc. 31 at 23), resort to canons of statutory interpretation is unnecessary, and that ends the matter. (Doc. 31 at 29 n. 20)
According to CDC, examining the other subsections, Section 264(b) through (d), reveals CDC’s expansive “breadth of [ ] authority . . . , [which] include[s] the ‘detention’ of individuals . . . and even the ‘destruction’ of property.” (Doc. 31 at 23, 29) CDC argues that these subsections “make plain that the broad grant of authority in the first sentence of § 264(a) is not confined to the specific intrusions on private property described in the second sentence.” (Doc. 31 at 29) In light of this perceived “breadth,” CDC maintains that “the agency’s regulations reflect the commonsense notion that, to avert the spread of communicable diseases, ships entering U.S. ports may be detained, inspected, and permitted to disembark only under specified circumstances.” (Doc. 31 at 23)
Next, even if the second sentence of Section 264(a) narrows the first sentence, as Florida suggests, CDC argues that the conditional sailing order “is still squarely within the agency’s statutory authority” because the conditional sailing order imposes on the cruise industry a set of conditions similar to “inspection, disinfection, destruction of property, and ‘other measures.’” (Doc. 31 at 30) CDC regards the conditional sailing order not as a “detention” of the cruise ships — moored already for fifteen months — but as a phased approach to conditioning “free pratique,” defined as “permission for a carrier to enter a U.S. port, disembark, and begin operation under certain stipulated conditions.” 42 C.F.R. § 71.1(b); (Doc. 1-3 at 22) (characterizing the conditional sailing order “as a condition of obtaining or retaining controlled free pratique for operating a cruise ship in U.S. waters”).
And according to CDC, the regulation of free pratique is a direct outflow of the “measures” contemplated by Section 264(a), which “are not different in kind than the other types of inspection, hygiene, and safety protocols listed in the statute.” (Doc. 31 at 30) On CDC’s reading, the “articles” described in Section 264(a), that is, the objects of the specifically enumerated measures, encompass a cruise ship. See First Preliminary Injunction Hearing Transcript at 94–8 (arguing that “article” includes a cruise ship); (Doc. 31 at 30). Thus, in CDC’s view, the conditional sailing order is “less intrusive” than the enumerated measures because the conditional sailing order requires no “detention” or “destruction” of property; the conditional sailing order merely regulates the pratique of a cruise ship. (Doc. 31 at 30)
In sum, CDC argues that the statute authorizes the Secretary to freely employ his “judgment” about restrictions “necessary” to prevent the transmission of communicable disease. (Doc. 31 at 27) Under CDC’s characterization, the statute “exudes flexibility and deference to the judgment of the public health experts” and this broad discretion comports with the “commonplace” legislative determination to defer to a specialized agency in an area of “scientific uncertainty.” (Doc. 31 at 28, 32–33) Included in this discretion is the authority to impose conditions for operating a conveyance in international and interstate travel during a pandemic. (Doc. 31 at 28) And included in this discretion is the legal authority to implement measures necessary to “get[ ] transmission to zero.” Second Preliminary Injunction Hearing Transcript, at 109 (Jun. 10, 2021). Thus, CDC argues explicitly that the second sentence of Section 264(a) places virtually no restraint on the director, who is free to regulate the nation as a whole, including any form of industry, enterprise, and activity, subject only to the director’s finding a measure “necessary” to prevent the interstate or international transmission of a communicable disease — and “transmission” to CDC means a single human-to-human infection.
ii. Precedent Interpreting Section 264
Just as the parties disagree about the meaning of Section 264(a), recent cases
interpreting Section 264(a) disagree — in the context of a rent moratorium imposed
by CDC — about the scope of authority that Section 264(a) confers on CDC.
Compare Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev.
,
Some courts read sentence one of Section 264(a) in light of sentence two and
hold that the statute empowers a narrower array of regulatory activity.
See, e.g.
,
Tiger
Lily
,
By contrast, Chambless “finds that the plain text of the statute is unambiguous and evinces a legislative determination to defer to the ‘judgment’ of public health authorities about what measures they deem ‘necessary’ to prevent contagion.” 2020 WL at *5. [29] Relying on an opinion addressing an FDA ban on small turtles, [30] Chambless reasons that Congress frequently grants broad flexibility to an agency implementing public health measures and that the list of enumerated items reinforces (rather than limits) CDC’s authority. 2020 WL at *6. Further, Chambless , like CDC, reasons that subsections (b) through (d) demonstrate that “the list contained in the first subsection is not an exhaustive list of the permissible measures available.” 2020 WL at *6. [31]
Although the former interpretation (the district court’s interpretation in Alabama Association of Realtors ) offers a much clearer and more intuitive rendering of the statute, each of these decisions interprets Section 264(a) in the context of a rent moratorium, and none of these cases addresses CDC’s authority in the context of regulating the transmission of a disease aboard a ship, an airplane, or another common carrier. To determine the scope of CDC’s authority, Section 264(a) requires consideration of both the history and the accompanying statutory text.
iii. Analysis of Section 264(a) The first sentence of Section 264(a) appears to provide the Secretary with broad authority to implement regulations that “in his judgment” prevent contagion. However, the next sentence explains that, to “carry out and enforc[e]” these regulations, the Secretary “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected . . . , and other measures.” CDC focuses on the more expansive words in the second sentence of subsection (a) — empowering “other measures, as in his judgment may be necessary” (Doc. 31 at 29–30) — and Florida focuses on the narrower language that authorizes “inspection, fumigation, disinfection, sanitation, pest extermination, [and the] destruction of animals or articles found to be so infected.” (Doc. 9 at 9–10)
But Florida correctly observes that the second sentence operates to limit
CDC’s enforcement and implementation authority to only those actions resembling
“inspection, fumigation, disinfection, . . . [and] pest extermination.” As explained in
Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs.
, 2021 WL
1779282, at *5 (D.D.C. 2021), “the first sentence of § 264(a) is tethered to — and
narrowed by — the second sentence.” The second sentence of Section 264(a)
discloses, illustrates, exemplifies, and limits to measures similar in scope and
character the measures contemplated and authorized by Congress when enacting the
statute.
Yates v. United States
,
Thus, if CDC promulgates regulations the director finds “necessary to
prevent” the interstate or international transmission of a disease, the enforcement
measures must resemble or remain akin to “inspection, fumigation, disinfection,
sanitation, pest extermination, [or the] destruction of infected animals or articles.”
Any other reading of the statute renders “inspection, fumigation, disinfection” —
renders the entire second sentence — superfluous.
Yates v. United States
, 574 U.S.
528, 546 (2015) (“The Government’s unbounded reading of ‘tangible object’
would render [the more specific] words misleading surplusage.”);
Williams v. Taylor
,
Nor does the residual “and other measures” broaden Section 264(a)’s scope.
As explained in
Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev.
, “[t]he
residual phrase in § 264(a) is ‘controlled and defined by reference to the enumerated
categories . . . before it.’”
Likewise, the
noscitur a sociis
canon relies on the assumption that the reader
can determine the meaning of a word according to the company the word keeps.
Bilski v. Kappos
,
Further, CDC argues that the only limitation on the director’s authority is
whatever the director finds “necessary.” Preliminary Injunction Hearing Transcript
at 80–85. This practically unbounded interpretation causes separation-of-powers
problems, discussed in greater depth below, and naturally stirs suspicion about the
constitutionality of Section 264(a). But as Justice Holmes explains, “A statute must
be construed, if fairly possible, so as to avoid not only the conclusion that it is
unconstitutional, but also grave doubts upon that score.”
United States v. Jin Fuey
Moy
,
Similarly, CDC’s permissive reading fails to acknowledge the “major
questions doctrine,” which assumes that Congress speaks clearly if aiming to assign
“to an agency decisions of vast economic and political significance.”
[32]
Util. Air
Regul. Grp. v. EPA
,
CDC acknowledges that, if considered a rule, the conditional sailing order constitutes a “major rule” under 5 U.S.C. § 804(2) (meaning the order is likely to affect the economy by more than $100,000,000 or is likely to increase costs for indi- vidual industries or state governments). In light of CDC’s unprecedented assertion of power and the conditional sailing order’s broader economic implications, a pre- dominant doubt remains that Congress would convey such formidable authority by the vague terms of Section 264(a).
In short, several canons of statutory interpretation — such as ejusdem generis , noscitur a sociis , the canon against surplusage, the constitutional avoidance canon, and the major questions doctrine — gravitate against CDC’s broad interpretation.
Next, the statute, according to Florida, permits CDC to destroy “animals or
articles” if “found to be so infected.”
See Alabama Ass’n of Realtors v. United States
Dep’t of Health & Hum. Servs.
,
Moreover, the “found to be so infected or contaminated” clause further limits
the statute by suggesting that an animal or article must present more than a
possibility or a remote risk of infection due to an instance of infection in another
animal or article.
Skyworks
, 2021 WL at *9 (“Congress directs the agency to act on
specific animals or articles which are themselves infected[.]”). In other words,
Section 264(a) allows the regulation of only an infected or infecting item.
Alabama
Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs.
,
iv. Other Provisions CDC alludes to other provisions in Section 264 to “underscore the breadth of [] authority” under the statute. (Doc. 31 at 23) According to CDC, because subsections (b) through (d), the quarantine provisions, authorize the “detention” of an “individual,” these subsections show that “other measures” include measures far beyond fumigation, extermination, and the like. (Doc. 31 at 23)
Additionally, rather than significantly expanding the scope of CDC’s
quarantine powers, subsections (b) through (d) provide a limitation on the quarantine
of a person. In example, 42 U.S.C. § 264(c) provides that “regulations prescribed
under this section . . . shall be applicable only to individuals coming into a State or
possession from a foreign country.” This provision shows, among other things, that
CDC’s quarantine powers recede if CDC regulates a person who is not arriving at a
U.S. port from abroad.
[33]
And this limited quarantine of a person comports with the
historical practices implemented by the federal government to temporarily inspect
and detain a foreign person arriving to a U.S. port. W ILLIAMS , P UBLIC H EALTH
S ERVICE , at 102–07 (detailing the Marine Hospital Service’s role in temporarily
inspecting and detaining immigrants). Hence, even though these subsections, if read
in isolation, expand the authority suggested by subsection (a) beyond fumigation and
the like, “the additional subsections do not supplant the reach of the first or create
other grounds justifying the orders at issue.”
Skyworks, Ltd. v. Centers for Disease
Control & Prevention
,
Next, the conditional sailing order invokes Sections 264 and 268 of the Public
Health Service Act. Although neither party delves into the broader statutory regime,
other provisions in the Public Health Service Act complement and clarify the powers
and duties described in Section 264 and, consequently, inform the most natural
reading of Section 264(a).
Hueso v. Barnhart
,
Sections 264 through 272 authorize the Secretary, among other things, (1) “to prohibit . . . the introduction of persons and property from [foreign] countries” with regulations approved by the president (Section 265); (2) to “apprehen[d] and examin[e], in time of war, [ ] any individual reasonably believed” to have an infection or risking contagion to members of the armed forces” (Section 266); (3) to create and manage quarantine stations (Section 267); (4) to utilize customs and Coast Guard officers to enforce the quarantine regulations (Section 268); and (5) to require a “bill of health” from any vessel headed to the United States from any foreign port not “near the frontiers of the United States,” which bill “shall set forth the sanitary history and condition of said vessel” (Section 269).
These statutes contemplate a regime in which the Secretary maintains the authority to inspect an incoming vessel at a quarantine station, to quarantine an infected person arriving from abroad (or, in a very limited circumstance, “any individual”), to require a bill of health as a condition of entering a U.S. port from abroad, and to detain an arriving carrier for the time necessary to sanitize or treat an animal or an article on board “found to be [ ] infected or contaminated.” These sections authorize measures that resemble Section 264(a)’s enumerated provisions and that accord with the federal government’s quarantine activity throughout American history. Thus, the broader statutory context confirms that CDC’s authority lies perfectly within the enumerated provisions in Section 264.
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, including Section 264. 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. With this statutory context in mind, the regulations implementing the statutes require brief examination.
3. The Regulatory Landscape
Despite the lack of authority explicitly appearing in Section 264(a), the conditional sailing order invokes 42 C.F.R. §§ 70.2, 71.31(b), 71.32(b), and 71.1 as well. Florida disagrees with CDC’s invocation of these regulations and asserts that CDC’s failure to investigate and reasonably articulate the inadequacy of state health measures forces CDC’s conduct outside 42 C.F.R. § 70.2. Further, Florida argues that the inspection and detention of vessels authorized by Section 71.31 is limited to brief, “non-invasive” measures so “CDC cannot detain cruise ships indefinitely.” (Doc. 9 at 13) Thus, Florida understands the regulations to constitute a limited “outflow of § 264.” (Doc. 9 at 13)
CDC reads the implementing regulations more broadly and again focuses on the language permitting CDC director to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary.” (Doc. 31 at 7) CDC observes that 42 C.F.R. §§ 71.32(b) and 71.31(b) explicitly authorize the detention of “an arriving carrier” to stop the “introduction or spread of a communicable disease.” And CDC observes that under 42 C.F.R. § 71.31(b) CDC may condition a carrier’s movement by issuing a controlled free pratique. (Doc. 31 at 6, 23–24)
CDC relies principally on the free pratique provision to justify the conditional sailing order and argues that a cruise ship is an “arriving carrier” within the meaning of § 71.32(b). (Doc. 31 at 24) According to CDC, “nothing in the statute forbids the agency from withholding controlled free pratique to any ship — or many ships, even for an extended period of time — until it is safe for them to resume operations.” (Doc. 31 at 27) CDC asserts that under the presumably broad authority granted to CDC, including the authority to condition free pratique, “[t]he conditional sailing order falls squarely within these regulations.” (Doc. 31 at 24)
Charging CDC with the authority granted to CDC under Section 264(a), 42 C.F.R. §§ 70 through 71 include regulations to contain communicable disease. But Part 70 differs importantly from Part 71. Part 70 applies only to a vessel in interstate transit. Part 71 applies only to a vessel in international transit, that is, to “regulations to prevent the introduction . . . of a communicable disease from foreign countries.” 42 C.F.R. § 71.1.
i. Part 70 and Interstate Quarantine Powers The only provision from Part 70 cited by CDC is 42 C.F.R. § 70.2, which resembles Section 264(a) by authorizing the director of CDC to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” However, Section 70.2 adds to Section 264(a) that the director may “take such measures” only after “determin[ing] that the measures taken by health authorities of any State or possession . . . are insufficient to prevent” disease from spreading. Otherwise, the analysis of Section 70.2 is in all respects similar to that of Section 264. Consequently, Section 70.2 fails to suggest any broader authority.
The other regulations governing the interstate quarantine power confirm this conclusion. Within Part 70, “vessel” is mentioned only once. Specifically, Section 70.4 obligates the “master of any vessel . . . in interstate traffic” to report to a local health authority at the next port of call if a case of a communicable disease occurs on board. Part 70 instead describes the extensive limitations on the federal government’s power to impose a domestic quarantine on a person. [34] Because Part 70 says nothing meaningful about the regulation of a vessel and because Section 70.2 imposes an additional requirement before triggering the quarantine measures (which only duplicate those in Section 264(a)), Section 70.2 fails to expand the scope of CDC’s authority. In fact, the only thing Part 70 clarifies is the federal government’s much more modest authority if regulating interstate activity or vessels — a point already acknowledged by CDC at the preliminary injunction hearing. Second Preliminary Injunction Hearing Transcript, at 116–17 (Jun. 10, 2021) (“CDC has claimed more authority over arriving international vessels . . . because they’re arriving from outside U.S. borders and should be subject to additional inspection[.]”). Therefore, Section 70.2 not only fails to provide further support for CDC’s authority to impose the conditional sailing order, Section 70.2 presents an additional hurdle to that authority.
ii. Part 71 and Foreign Quarantine Powers In contrast, Part 71 includes regulations to prevent contagion “from foreign countries into the States,” and the regulations permit an array of tools to accomplish the director’s international quarantine objectives. 42 C.F.R. § 71.1(a). [35] Structurally, Part 71 defines terms and next describes measures (1) for vessels at foreign ports (Subpart B), (2) for vessels in transit to an American port (Subpart C), (3) for health measures at an American port (Subpart D), and (4) for inspection upon arrival from a foreign port (Subpart E). The primary foreign-quarantine regulations invoked by the conditional sailing order appear in Sections 71.29 through 71.40, Subpart D. These provisions warrant closer review.
CDC prominently features 42 C.F.R. § 71.31 in defending the agency’s claim to greater authority. (Doc. 32 at 24–5) Section 71.31(a) exempts an arriving carrier from inspection “unless the Director determines that a failure to inspect will present a threat of introduction of communicable diseases into the United States.” (This exemplifies CDC’s more recent regulatory relaxation for an incoming vessel.)
On the other hand, Section 71.31(b) contains two sentences that enable CDC to enforce the rest of Part 71 governing foreign quarantine powers. The first sentence permits the director to “require detention of a carrier until the completion of the measures outlined in this part,” and the second sentence permits “[t]he Director [to] issue a controlled free pratique to the carrier stipulating what measures are to be met[.]” In both instances, however, detention and controlled pratique are limited by the temporal component of subsection (b): “until the completion of the measures outlined in [ ] part [71].” And in both instances, the detention and the controlled free pratique are ancillary powers that enable and serve the implementation of other measures in Part 71. [36] In other words, to implement any of the foreign quarantine measures included in Part 71, CDC may detain a vessel and issue a controlled free pratique to that vessel until the measures from Part 71 are completed.
For instance, if CDC intends to disinfect a vessel’s cargo under Section 71.42 or require “disinfestation” of vermin under Section 71.41, “[t]he Director may require detention” of the vessel until completion of either the disinfection or the disinfestation, the director may issue a controlled free pratique until completion of either the disinfection or the disinfestation, or the director may do both until completion of the measures. In any of these instances, the detention and the conditioned free pratique serve as temporary tools directed to a specific vessel to accomplish the other measures appearing in Part 71.
Yet, the conditional sailing order requires several “measures” not outlined in Part 71. The conditional sailing order serves as a long-term detention unless and until CDC issues further “measures,” which are subject to change and which fail to appear in Part 71. The record shows that this detention has lasted several months — far longer than any pertinent incubation period and far longer than required by any “measure” from Part 71. The conditional sailing order prescribes excruciating and extra-regulatory “measures,” such as the requirement to build laboratories on board; the requirement to contract with customers as well as several public and private entities at ports-of-call; the requirement for pervasive daily testing and reporting; the requirement to conduct self-funded, expensive simulated voyages (or to vaccinate 95% of passengers, including children too young to qualify for vaccination at this time); and the requirement to limit operations after obtaining a conditional sailing certificate. Whether a detention or a conditioned pratique, the conditional sailing order is unprecedented in duration and scope, and CDC exceeded its regulatory authority under the provision on which CDC stakes the conditional sailing order — Section 71.31.
Next, the conditional sailing order cites 42 C.F.R. § 71.32(b) to substantiate CDC’s authority. Subsection (b) empowers the director to “require detention, disinfection, disinfestation, fumigation, or other related measures respecting [an arriving] carrier or article or thing as he/she considers necessary to prevent the introduction, transmission, or spread of communicable diseases.” [37] Although this section, like Section 70.2, hardly clarifies CDC’s authority (given the provision’s similarity to Section 264(a)), two features of Section 71.32(b) are noteworthy. First, the “other related measures” clause suggests that the other catch-all provisions include only measures “related” to the enumerated measures — for example, “detention, disinfection, disinfestation, [and] fumigation.” This again commends a narrower reading of the similar provisions appearing in Section 264(a) and Section 70.2.
Second, subsection (b) targets an “arriving carrier.” In fact, both Sections 71.31 and 71.32 apply only to an “arriving carrier,” as conceded by CDC. Preliminary Injunction Hearing Transcript, at 122 (May 12, 2021). Thus, whatever interpretation of Section 71.31 and 71.32 is contrived, CDC can implement the measures from neither Section 71.31 nor 71.32 unless a vessel is inbound. But the conditional sailing order forces regulation on vessels that have been moored in U.S. ports for more than fifteen months. This presents a formidable interpretive hurdle for CDC.
To begin with, the plain meaning of “arriving” suggests that a fleet of vessels moored in a U.S. port — that is, a fleet of vessels that is decidedly not arriving — cannot constitute an “arriving carrier” to trigger application of the measures in 71.31 and 71.32. Attempting to overcome this hurdle, CDC interprets an “arriving carrier” to include the locally moored cruise vessels under the theory that the vessels might arrive after an earlier departure. (Doc. 31 at 24; Doc. 47 at 122); Yet the conditional sailing order imposes restrictions (coupled with penalties) on a vessel’s ability to embark in the first instance, and, consequently, prevents the conditions required for a vessel to acquire status as “arriving.” Even CDC defines “controlled free pratique” as “permission for a carrier to enter a U.S. port, disembark” passengers, and conduct other operations at the port. In other words, CDC’s circular pretext precludes the conditions required to trigger application of the “arriving vessel” regulation.
CDC attempts to “fill this gap” by arguing that Section 70.2 otherwise authorizes the conditional sailing order if the cruise vessels fail to constitute an “arriving carrier.” First Preliminary Injunction Hearing Transcript, at 86 (“[I]f there were any gaps in the CDC’s regulatory authority here with respect to arriving carriers, . . . it’s amply filling in by Part 70.2[.]”). But as discussed above, CDC’s authority to regulate interstate voyages in accord with the conditional sailing order is unmistakably lacking in Part 70.
In any event, assuming the provisions invoked by CDC arguably include cruise ships as an “arriving carrier,” CDC’s authority to issue the conditional sailing order remains suspect. “Controlled free pratique,” although vague in the regulation, has historically included limited measures required to resolve a specific infection or the like reported during an inbound voyage or encountered during an inspection. And history shows controlled free pratique was designed to lessen and to replace [38] the bill-of-health requirement, not to impose even more burdensome and comprehensive industry-wide requirements that detain a fleet in port indefinitely.
In short, none of the regulations invoked by CDC justifies the conditional sailing order. Even if ignoring Sections 71.31 and 71.32’s application to only an “arriving carrier,” the measures appearing in both regulations and the history of conditioning pratique demonstrate CDC’s authority to implement pointed, discrete, and temporary measures. 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. The closest historical antecedent CDC identifies (perhaps in jest) is a former ban on baby turtles with a shell less than four inches wide. First Preliminary Injunction Hearing, at 60–61. Thus, although CDC enjoys the authority to temporarily detain a vessel and to condition pratique, that authority is not boundless. The authority extends to and serves other measures, which look a lot like those specified in Section 264(a): “inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction of animals or articles.”
Both text and history confirm that the conditional sailing order exceeds the
authority granted to CDC by Section 264(a). And if Section 264 fails to confer the
statutory authority for the conditional sailing order, the regulations implementing
Section 264 can grant no additional authority.
See Nat’l Petroleum Refiners Ass’n v.
F.T.C
.,
4. Ratification
In a supplemental memorandum (filed after the first hearing), CDC argues (Doc. 72) that Congress ratified the conditional sailing order by passing the Alaska Tourism Restoration Act, Pub. L. No. 117-14, 117th Cong. (May 24, 2021), which removes a restriction imposed by the Passenger Vessel Services Act, 46 U.S.C. § 55103, prohibiting a foreign-flagged cruise ship (that includes most cruise ships) from sailing from a U.S. port to another U.S. port unless the cruise ship stops in transit at a foreign port. 50 Fed. Reg. 26,961, 26,982 (July 1, 1985). Because Canada currently bars a foreign-flagged cruise ship’s entering a Canadian port, a foreign-flagged cruise ship intending to sail between Alaska and Washington cannot comply with the Passenger Vessel Services Act. (Doc. 46-11) The Alaska Tourism Restoration Act creates a temporary and narrow exception allowing a foreign-flagged cruise ship to sail between Alaska and Washington without violating the Passenger Vessel Services Act. The Alaska Tourism Restoration Act defines as a “covered cruise ship” a foreign-flagged cruise ship that “has been issued, operates in accordance with, and retains a COVID-19 Conditional Sailing Certificate of the Centers for Disease Control and Prevention.”
Arguing that — by mentioning the conditional sailing certificate in the Alaska
Tourism Restoration Act — Congress has confirmed that CDC has the statutory
authority to issue a COVID-19 conditional sailing certificate, CDC correctly
contends that “Congress ‘has the power to ratify the acts which it might have
authorized’ in the first place,
Thomas v. Network Sols., Inc
.,
Here, Congress has not expressly ratified CDC’s “interpretation of its own
authority” to issue a COVID-19 conditional sailing order. (Doc. 72 at 4) Rather, the
Alaska Tourism Restoration Act identifies the category or class of ships exempt
temporarily from the Passenger Vessel Services Act. Identifying the class of ships to
which a statute grants a benefit is far different from — and much less than —
expressly ratifying an agency’s authority to issue a certificate, the holders of which
constitute the affected category or class. If Congress intended to ratify an
interpretation of Section 264 that authorizes CDC to impose the restrictions
governing a COVID-19 conditional sailing certificate, Congress “would have
explicitly so declared.”
Heinszen,
“Congressional acquiescence to administrative interpretations of a statute” is
“[r]ecognized with extreme care.”
Solid Waste Agency of N. Cook Cty. v. U.S. Army
Corps of Engineers
,
Further, Congress cannot ratify an interpretation of a statute that violates the
Constitution, including an unconstitutional delegation of legislative authority, which
Florida alleges (Count V).
Heinszen
,
5. Non-Delegation Doctrine
Again, the enabling statute at the core of the present dispute, 42 U.S.C.
§ 264(a) states:
(a) Promulgation and enforcement by Surgeon General The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
The first sentence grants to CDC authority to “make and enforce such regulations as in his judgment are necessary” to combat “the spread of communicable diseases.” The first sentence says nothing about the means of enforcement. The second sentence of Section 264 grants authority for “carrying out and enforcing such regulations.”
Although this order decides otherwise for the purpose of the pending motion, this portion of the order assumes that the “other measures” term is not cabined by the balance of the listed remedies and that “other measures” means whatever the CDC director’s discretion finds “necessary,” the interpretation advanced by CDC.
CDC characterizes the statute as containing “capacious” terms that are “especially broad,” “exud[ing] flexibility and deference to the judgment of the public health experts at the CDC.” (Doc. 31 at 27–28) More specifically, CDC insists that “the broad grant of authority in the first sentence of § 264 is not confined to the specific intrusions on private property described in the second sentence.” CDC concludes in the single paragraph of the response addressing non-delegation, “Plaintiff’s non-delegation challenge here easily fails.” (Doc. 31 at 43)
At the first hearing on the preliminary injunction, counsel for CDC was asked to identify the outer boundary on CDC’s authority under Section 264(a). Although the exchange consumes several pages of the transcript and wanders a bit (Doc. 47 at 81–87), counsel for CDC was either unable or unwilling to specify any remedial or preventative measure that was beyond the authority of CDC, assuming only two findings by CDC:
Q: Is there some bound to . . . your authority?
A: Yes. At a bare minimum, the CDC needs to be making a finding that there is a risk of the interstate or international transmission of the disease at issue. So that’s one very important bound, and they have to find that the measures are necessary to control it.
(Doc. 47 at 81–82) But that response from CDC’s counsel answered the question only to the extent of identifying the conditions precedent to CDC’s exercise of authority and omitted the more revealing answer that might explain the outer bound of the enforcement measures CDC can impose consequent on the two identified findings by CDC.
During further questioning, counsel for CDC maintained that CDC could indefinitely shut down an industry, such as the airline industry and other “conveyances of interstate and international travel during an emergency in which those specific conveyances as a category were found to pose a risk of transmission.” (Doc. 47 at 82–83) (Note the term “a risk of ” transmission and not the term, for example, “a history of ” or “an outbreak of” transmission.) CDC simultaneously claimed that CDC, subject to the two “findings,” could issue an order to “shut down transportation in general” in the United States, subject only to a challenge in court based on a claim that the order was “arbitrary and capricious.” But CDC in that prospective litigation would remain shielded by the persistent administrative claim to “deference,” which the judiciary manufactured and in which the judiciary persists.
Another question was this: If the president hadn’t restricted air travel in early 2020 (“very prominent people in government said the president shouldn’t have done it”) and “had come out and said ‘I won’t do it,’” can the director of CDC announce the next day, ‘Well, I’m going to do it.’” CDC’s counsel (I say this respectfully) tiptoed a bit around the question and this was the result:
Q: . . . [I]f the President of the United States said, I refuse to stop airline flights back and forth from – where was it – Europe and China and maybe some other places and the CDC director could come out or HSS secretary could come out the next day and say, Well, I’m going to do it under this authority.
A: [They] just might have some compelling arbitrary [and] capricious arguments in that case.
Q: And they would be – they would be subject to litigation.
. . . . A: But again, all of that goes to sort of the outer limits of what the CDC can do. What the CSO does – Q: Well, I’m trying to get to the point of what the outer limit is, and you just say it’s just what they find necessary.
A: Yes, I think that’s correct. There are –
Q: Which means it’s not identifiable.
A: Well, it means that it’s flexible based on discretion intentionally conferred upon the Secretary with these specific kinds of findings, right? It is intended to be flexible language. Congress knows how to legislate broadly and how to do so narrowly. They legislated broadly here.
(Doc. 47 at 86–87)
At the second hearing on the preliminary injunction, additional questions were asked to CDC about the bounds of CDC’s authority. An ever-broader interpretation emerged. The questions, assuming an irreducible minimum of risk exists in every aspect of human life, were directed to identifying the level of risk for the transmission of disease that CDC would permit if the cruise industry achieved that level and resumed “safe” sailing (understanding “safe” to mean sailing at or below the “acceptable” risk as defined by CDC).
Q: What intelligible principle was conveyed to the CDC by the statute to guide the CDC in determining the level of risk or the degree of transmission that was acceptable before constraining interstate and international travel by a common carrier?
A: The – the interstate and international transmission, the requirement of necessity in the secretary’s judgment, those are meaningful limits, those are intelligible principles on how the CDC can set the risk level.
And they’re judicially reviewable to as a matter of – of, uh, under – under the APA courts can consider that. But whether or not the risk that is reasonable and consistent with the evidence, that is not, uh, the statute – Q: You think necessary is an intelligible principle?
A. It – combined with the other language in the statute, yes.
. . . .
Q: The point here is you’ve agreed with me two or three times that in – in practicality we can’t guarantee a zero. Uh, this is a virus that’s loose in the world, and there are other viruses loose in the world and you’ve spent a good deal of time pointing out that there may be variations and mutations of this virus loose in the world about which we don’t know yet.
And we’ve all agreed throughout the day that we have some risk always in whatever we do. And the question that I’m asking, which I think is implicit at least in one major component of this case is, has Congress conveyed an intelligible principle to guide the CDC in determining when and under what circumstances to intervene in . . . what [Justice] Kavanaugh might call a major policy decision?
A: I think that listening to you explain the point, I think I would probably say that CDC has the authority given by Congress to legislate up to eliminating the risk. It’s not an option here, it’s a factual matter. But their legal authority extends that far, and where they draw the line is a question of how they find the facts and –
Q: It’s up to them, right?
A: It – well, their legal authority goes all the way to getting transmission to zero. Right? Ha. Just because that’s not factually an option doesn’t mean that they don’t have the legal authority to try.
(This exchange extended over several minutes (Doc. 89 at 104–110), and this segment is an edited — a fairly edited — compaction.)
In sum, defining “transmission” as a single human-to-human infection, CDC claims authority to impose nationwide any measure, unrestrained by the second sentence of Section 264(a), 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.
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 or, at the very least, imposed in accord with Section 264(a) strict requirements for inspection, disinfection, sanitation, and “other measures, as in his judgment may be necessary” to reduce to “zero,” for example, the human-to-human transmission of AIDS or syphilis or herpes. Political prudence (and difficulty of enforcement) might counsel CDC against this particular prohibition, but the statute, as understood by CDC, certainly erects no barrier.
Also, one is left to wonder whether Congress could rid itself of the burdensome income tax issue by enacting a law commanding the Commissioner of the Internal Revenue Service in his discretion to “collect tax at a fair rate as the commissioner finds necessary” and stating that the rate “must be no more or less than required to pay for necessary and beneficial public programs especially for the poor, the disabled, those with special needs, and others needful of public support; must be disproportionally or unfairly burdensome to neither the poor nor the rich but reach all those able to pay; must not be so great as to depress productive and publicly desirable economic activity or to deter individual initiative but must touch each aspect of gainful economic activity; and must be calculated to enhance economic growth and technological advancement without favorable treatment for the rich or powerful.” This hypothetical directive to the IRS says, in so many words “You do it, but do it right!” This hypothetical revenue code neither prescribes or prohibits any particular tax or tax rate on anyone or any entity and, although containing some happy aspirational words, contains no effective “intelligible principle” for establishing a regime of taxation, although this hypothetical revenue code contains much more than Section 264(a), as understood by CDC.
CDC claims a remarkable and generally unbounded power of the director of CDC to act athwart the president; to close industries; to restrict the movement of citizens in an out of their country, their state, their county, and city, and their home. And recent history demonstrates that the power of the director of CDC, unless and until corrected by the judiciary, can oust the ability of a state to exercise the police power — all without formal notice and comment from the public and continuing from year-to-year.
Florida argues in Section 1(b) of the motion for preliminary injunction that
“[i]f the Conditional Sailing Order does not exceed the authority under § 264 and the
relevant regulations, then § 264 and those regulations constitute an unconstitutional
exercise of lawmaking by the executive branch.” (Doc. 9 at 20) Florida cites in
support only
Tiger Lily, LLC v. United States Dep’t of Health and Human Services
,
This order earlier rejects the “broad construction” but, especially in consideration of the somewhat conflicting opinions on the proper construction of the statute, this order must determine alternatively Florida’s likelihood of success in the non-delegation challenge if CDC’s “broad construction” of Section 264(a) prevails. Although accounts of the non-delegation doctrine — the constitutional prohibition against congressional delegation of legislative power to an executive agency — are many and familiar, a brief summary of the most conspicuous precedents, incomplete but illustrative, might clarify.
Except for a quick and ambiguous dispute in
The Brig Aurora
,
[T]he statute, when properly construed, as said by the circuit court of appeals, but expresses the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality.
This, in effect, was the fixing of a primary standard, and devolved upon the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute.
A similar result appears in
United States v. Grimaud
,
can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.
Based on the “impracticality” of Congress’s managing particulars, Grimaud seems to authorize Congress to empower an agency to implement a congressional policy by “determin[ing] some fact or some state of things upon which the law makes or intends to make its own action depend,” a formulation that again echoes The Brig Aurora and Buttfield .
Mahler v. Eby
,
Our history has created a common understanding of the words “undesirable residents” which gives them the quality of a recognized standard.
In other words, Congress ordered the deportation of “undesirable residents” and the Secretary of the Treasury complied, putatively informed by the historical and “common understanding” of who exactly is an “undesirable.” (Surely a reasonable person ought to experience discomfort if considering whether a grant of power over people’s lives based on a presumed “common understanding” of who is an “undesirable” — or perhaps, more recently, a “subversive” or a “radical” or a “deplorable” — is too great a license in a constitutional republic.)
Not long after
Grimaud
and
Mahler
and amid the turbulence of The Great
Depression and the accompanying and aggressive implementation of the New Deal,
the so-called “non-delegation doctrine” reached a zenith in
Panama Refining Co. v.
Ryan
,
But sentiment abruptly pivoted on the Supreme Court after
Panama Refining
and
Schechter Poultry
. Legal and other historians still debate why the pivot occurred.
But for the present purpose, no more is necessary than to note, for example, that
National Broadcasting Co. v. United States
,
Concurring in
Industrial Union Dept. v. American Petroleum Institute
, 100 S. Ct.
2844 (1980), and dissenting with Chief Justice Burger in
American Textile
Manufacturers Institute v. Donovan
,
From the earliest days of the United States the federal courts have affirmed the
existence of the non-delegation doctrine but neither formally abandoned nor fully (or
even earnestly) formulated and enforced non-delegation in practice. Apparently the
present requirement, if any, for Congress to avoid an unconstitutional delegation —
the best available summary phrase, which echoes
J.W. Hampton, Jr., & Company v.
United States
,
More recently,
Gundy v. United States
,
Justice Kavanaugh took no part in the consideration or decision of
Gundy
,
although in a dissent from a denial of certiorari in
Paul v. United States
,
Justice Gorsuch’s dissent re-states that “[t]he Constitution promises that only
the people’s elected representatives may adopt new federal laws restricting liberty.”
Justice Gorsuch emphasizes that “laws” promulgated by executive and
administrative actors are not “few in number,” not “the product of widespread social
consensus,” not “likely to protect minority interests,” and not “apt to provide
stability and fair notice.”
And if laws could be simply declared by a single person . . . [l]egislators might seek to take credit for addressing a pressing social problem by sending it to the executive for resolution, while at the same time blaming the executive for the problems that attend whatever measures he chooses to pursue. In turn, the executive might point to Congress as the source of the problem. These opportunities for finger-pointing might prove temptingly advantageous for the politicians involved, but they would also threaten to “ ‘disguise ... responsibility for ... the decisions.’ ”
Further, Justice Gorsuch wisely and strongly insists on the irreplaceable role of each Article III judge to enforce diligently the distinction between the executive branch and the legislative branch, a distinction on which the maintenance of a constitutional republic depends:
The framers knew, too, that the job of keeping the legislative power confined to the legislative branch couldn’t be trusted to self-policing by Congress; often enough, legislators will face rational incentives to pass problems to the executive branch. Besides, enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. Indeed, the framers afforded us independence from the political branches in large part to encourage exactly this kind of “fortitude ... to do [our] duty as faithful guardians of the Constitution.”
Along with the Chief Justice and Justices Thomas, Alito, and Kavanaugh, Justice Gorsuch is manifestly dissatisfied with “the intelligible principle misadventure” or, at least, “this mutated version of the ‘intelligible principle’” doctrine, with which only three justices seem content. That bodes ill for the “intelligible principle misadventure.” Accordingly, Justice Gorsuch proposed some components, in the form of questions, that describe a better and more effective device to preserve the constitutional arrangement and the correspondent protections identified by Justice Gorsuch:
To determine whether a statute provides an intelligible principle, we must ask: Does the statute assign to the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy judgments? Only then can we fairly say that a statute contains the kind of intelligible principle the Constitution demands.
Justice Gorsuch’s opinion raises constitutional principle above agency self- interest, political expediency, congressional inconvenience, and unwarranted and risky deference to a select cohort of agency “experts.” (Anyone familiar with the “dueling experts” of litigation, with conflict among experts during debates in other public forums, or with history, especially recent history, must regard with skepticism the consistency, reliability, and independence of experts.)
Justice Gorsuch prefers to rely on the constitutional framework, informed and advised by both experts and others, to resolve the main lines of public policy and the overall management of the nation, which presents issues that require balancing both expert opinion and other irreplaceable components, including public opinion, public risk, public cost and public benefit, constitutional norms, and other national values over which an expert or an administrator or an agency staff has no greater power to decide correctly than the informed opinion of the people’s elected representatives, including the president, who is one of only two officeholders (along with the vice- president) elected by the nation as a whole.
The intractable confusion resulting from phrases such as “common understanding,” “intelligible principle,” and the others, is such that capable and reputable modern scholars can maintain simultaneously that the “non-delegation doctrine” is unjustified by, and unknown to, the Constitution, see, e.g., Eric A. Posner and Adrian Vermeule, Interring the Non-Delegation Doctrine , 61 U. C HI . L. R EV . 1721 (2002), while others maintain equally staunchly that the whole of legislative delegation and the resulting administrative state is ahistorical and unconstitutional, see, e.g. , P HILIP H AMBURGER , I S A DMINISTRATIVE L AW U NLAWFUL ? (Univ. of Chicago Press, 2014).
But more specifically, in the few years between Butterfield and the present, the law of the United States on non-delegation has changed — by a series of small increments justified by increasingly attenuated inferences — from a lively argument about whether Congress can bestow on an executive agent the power, for example, to forfeit, as a prohibited cargo, low “cup quality” teas, such as “Country green teas,” to an argument in the present about whether Congress, based on an ambiguous sentence or two in a statute, can bestow on an executive agent the power indefinitely to halt the operation of, and perhaps destroy, an entire industry or several industries or perhaps the industries of the entire nation, destroy businesses and lives dependent on industry, halt the movement of citizens within the nation, halt anyone’s entering or exiting the nation or entering or exiting any or all of the states, halt public gatherings, including religious services, regardless of purpose, or otherwise alter the course, history, prosperity, and health of the nation and the balance of governmental authority — legislative and executive, federal and state, state and local — throughout the nation.
During the scores of years of litigation about non-delegation, the Constitution, that is, the organic grant of power from the sovereign people and the sovereign states to the federal government, has changed in no manner pertinent to non-delegation, but the rulings of the Supreme Court and the lower federal courts, themselves components of the federal government and immediately dependent on Congress for support and continuity, have changed relentlessly and have allowed a more encompassing and increasingly amorphous delegation to the administrative state of the power to command and coerce the citizenry. 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.
From The Brig Aurora to now, no court has failed to affirm the apparently self- evident proposition that Congress cannot delegate the power to legislate, but at the same time no court, excepting for a moment in the 1930s, has detected the forbidden but always elusive unconstitutional delegation of legislative authority, regardless of the ambiguity or expanse of the grant of authority. As a result, the power of the executive agencies has expanded exponentially. The federal courts have stood by quiescently as the structure and theory of government that is explicit in the Constitution has mutated and deformed.
In a letter to Nathaniel Macon on October 20, 1821, Thomas Jefferson wrote: Our government is now taking so steady a course as to show by what road it will pass to destruction, to wit, by consolidation first; and then corruption, it’s necessary consequence. The engine of consolidation will be the Federal judiciary; the two other branches the corrupting and corrupted instruments.
Jefferson is not yet proven wrong.
The question remains as to the best means to determine whether legislation has exceeded the permissible boundary of delegation. Perhaps a few elemental questions, in concert with those identified by Justice Gorsuch, point toward an answer. For example, can Congress, the president, and the court ascertain from the statute at the time of enactment (1) the scope of the regulatory power granted to the agency, including the range of activity subject to regulation; (2) the circumstances in which an activity becomes subject to regulation and for how long; (3) the extent to which and the duration for which the agency — without congressional approval — can constrain liberty and alter human conduct and industry; and (4) the extent of any remedial authority, including the power to suspend, terminate, prohibit, enjoin, or compel an activity or to fine, imprison, or otherwise coerce any person? Also, can the Congress, the president, and a court ascertain whether any stated activity or person is definitely outside the statute and beyond the scope of the grant of regulatory power to the agency, that is, whether a stated activity or actor is not subject to regulation, remedy, and punishment by the agency?
These questions are essential because, in practice, law is force, a legitimate and formalized means of command and coercion, both of which are organically and structurally bounded in a constitutional republic. If Congress cannot specify what force — what power to command and coerce — is invested in an agency by a statute, Congress perforce has bestowed on an agency the power to decide for itself, unbound by legislative directive, the nature and scope of the agency’s power to deploy force, that is, to command and coerce. Forbidding that sort of delegation seems the least that is required by, and the least that is unmistakably implicit in, the Constitution’s bestowing the entire legislative power on the legislative branch. Again, the legislative power is the government’s power to command and coerce; the party, however denominated or arrayed, who determines the scope and extent of the power to command and coerce is the party who exercises the legislative power.
Without the elemental distinctions, including the separation of powers, prescribed in the Constitution, what remains is neither constitutional nor a republic. The administrative state is nowhere expressed or adumbrated in the Constitution, which grants the entire legislative power to elected representatives, whom the Constitution contemplates will govern in fact and for their governing remain electorally accountable to those who selected and empowered them. Unaccountable administrative law, unbounded by ascertainable directives from the legislative branch, is not the product of an ascendant and robust constitutional republic.
John Hart Ely in Democracy and Distrust (Harvard University Press 1980), discussed overly broad delegations to the executive:
Now this is wrong, not because it isn’t “the way it was meant to be” — in some circumstances there may be little objection to institutions trading jobs — but rather because it is undemocratic, in the quite obvious sense that by refusing to legislate, our legislators are escaping the sort of accountability that is crucial to the intelligible functioning of a democratic republic.
. . . .
There can be little point in worrying about the distribution of the franchise and other personal political rights unless the important policy choices are being made by elected officials.
Courts thus should ensure not only that administrators follow those legislative policy directions that do exist — on that proposition there is little disagreement — but also that such directions are given.
Ely explained succinctly the nature of unbounded administrative lawmaking and the danger of elected legislators avoiding focused work on policy (to focus on spending) and avoiding accountability by diverting responsibility to the administrative agencies. Ely dismissed the transparent excuse that regulatory subjects are too varied, technical, and complex to permit “detailed legislative instructions.” Ely’s answer is the obvious fact that Congress can summon the same or more resources than an agency, including the agency’s staff, experts, and the like. Of course, many arrangements are available other than the false and insidious dichotomy of (1) no administrative agencies or (2) unbounded delegation to an administrative agency. As Ely states, “Policy direction is all that was ever required, and policy direction is what is lacking in much contemporary legislation.”
If Section 264(a) conveys to the director of CDC the authority that CDC claims in this action to support the conditional sailing order and the implementing requirements, Section 264(a) fails the “intelligible principle” test and unconstitu- tionally delegates legislative authority to the director of CDC. The better interpretation is the narrow interpretation advanced by Florida; failing that, the statute goes too far.
B. Count II and Count III
Florida argues that the conditional sailing order is arbitrary and capricious and that CDC failed to provide notice and comment. [39] CDC insists that the conditional sailing order exhibits “reasoned decisionmaking” that reflects “public health judgments made in the midst of a deadly global pandemic.” (Doc. 31 at 32) Also, CDC insists that CDC was “not required to conduct notice-and-comment rulemaking to condition a license or enter an order under existing regulations during the pendency of a global public health emergency.” (Doc. 31 at 4) Resolution of these issues requires a preliminary characterization of the conditional sailing order.
1. Whether the Conditional Sailing Order Qualifies as a Rule CDC maintains that “the challenged agency action is an order, not a rule,” and the conditional sailing order disclaims status as “a rule within the meaning of the APA.” (Doc. 31 at 40; Doc. 1-3 at 19) Instead, CDC identifies the conditional sailing order as “a declaratory order conditioning free pratique, which is a license.” By contrast, Florida argues that the conditional sailing order “is a legislative rule because it creates new legal duties.” (Doc. 56 at 13)
“Rule” is defined in 5 U.S.C. § 551(4) as “the whole or a part of an agency
statement of general or particular applicability and future effect designed to
implement, interpret, or prescribe law.” Decisional authority lends clarity to the
statutory definition. To constitute a final rule, an agency’s action “must mark the
consummation of the agency’s decisionmaking process” and the action must either
determine “rights or obligations” or constitute action from which “legal
consequences will flow.”
Bennett v. Spear
,
Franklin v. Massachusetts
,
Here, the conditional sailing order “creates new law, rights, or duties,”
Warshauer v. Solis
,
Further, the conditional sailing order causes a “future effect” rather than a
“retroactive effect,”
Safari Club Int’l v. Zinke
,
Finally, CDC’s conduct demonstrates that CDC recognized that the
conditional sailing order is a rule. CDC published in the federal register a proposal
to issue a regulatory framework, invited and (ostensibly) considered comments,
promulgated the conditional sailing order with some explanation of CDC’s decision,
and noted the category of rule — a major rule — under which the conditional sailing
order would fall if the conditional sailing order qualified as a rule. Each of these
actions, taken together, suggests that CDC “set out with a lawmaking pretense.”
United States v. Mead Corp
.,
In plain words, if it reads like a rule, is filed like a rule, is treated like a rule,
and imposes the consequences of a rule, it’s probably a rule.
N. Carolina Growers’
Ass’n, Inc. v. United Farm Workers
,
2. Whether the Conditional Sailing Order is Arbitrary and Capricious Florida asserts that the conditional sailing order is arbitrary and capricious.
(Doc. 9 at 14) To this end, Florida argues that CDC “ignored important aspects of the problem,” including development of vaccines and the success of foreign cruise companies, and Florida argues that CDC has provided no realistic opportunity for the cruising fleet to timely complete the four-phase “framework” described in the order. (Doc. 9 at 14–15)
CDC responds that no vaccines had received FDA approval when CDC issued the conditional sailing order, and in any event, CDC “has considered the availability of vaccines in devising and issuing its technical instructions and guidance to implement the [conditional sailing order.]” (Doc. 31 at 33–4) Further, CDC argues that, despite Florida’s grievances about actions “post-dating the conditional sailing order, they cannot be considered in evaluating the reasonableness of the [conditional sailing order].” (Doc. 31 at 34)
The APA empowers a district court to “hold unlawful and set aside agency
action, findings, and conclusions found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Although an agency’s action receives deference and a district judge enjoys no
authority to “substitute its judgment for that of the agency,” an agency’s action is
characterized as “arbitrary and capricious if the agency . . . entirely failed to consider
an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.”
Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.
,
Both Florida and CDC attempt to cite post-conditional-sailing-order
developments to undermine or support the validity of the conditional sailing order.
But, as both parties acknowledge (Docs. 31 at 34; 56 at 3), “[i]t is a ‘foundational
principle of administrative law’ that judicial review of agency action is limited to ‘the
grounds that the agency invoked when it took the action.’”
Dep’t of Homeland Sec. v.
Regents of the Univ. of California
,
On this record (and disregarding later developments), Florida’s likelihood of
success on the merits of Counts II and III remains unclear.
[41]
However, two features
of the conditional sailing order suggest that the order is arbitrary and capricious.
First, the conditional sailing order imposes vague and indefinite rules subject
to change. Throughout the conditional sailing order, CDC reserves the authority to
“enforce any of the provisions of this framework through additional orders . . . and
[to] issue additional technical instructions as needed,” which CDC regularly creates.
(Doc. 1-3 at 21, 23, 25, 35; Doc. 72-1 at 3–4) Several of CDC’s subsequent
“technical instructions” have “imposed new duties” and have “had ‘palpable effects’
upon the regulated industry and the public in general,” and, consequently, carry the
force of law.
Council of S. Mountains, Inc. v. Donovan
,
observes that EDC reports “[a]s of October 30, 2020,” confirm (1) that 4% of polymerase chain
reaction COVID-19 tests were positive, (2) that twenty-four people had been hospitalized, and (3)
that fifteen medical evacuations had occurred. (Doc. 1-3 at 11) Moreover, the conditional sailing
order discusses relatively recent academic literature. (Doc. 1-3 at 12–13);
see Miccosukee Tribe of
Indians v. United States
,
Second, the parties dispute whether CDC’s alleged failure to consider the adequacy of measures by state and local governments was arbitrary and capricious. According to Florida, the order relies on a generic, global generalization that all non- federal measures are inherently inadequate to ensure public health and safety in the cruise industry, a conclusion reached without investigation into the measures adopted by the states, the local governments, or the cruise industry. (Doc. 9 at 16)
In response, CDC insists that “CDC reasonably found that state and local governments cannot adequately regulate a ship whose operations are international and interstate in nature.” (Doc. 31 at 35) CDC further observes that the conditional sailing order explicitly addresses and implements some of the measures proposed by the cruise industry’s Healthy Sail Panel. (Doc. 31 at 35) And according to CDC, Florida identifies no regime adopted by the state or by the cruise industry that adequately protects public health and safety in the cruise industry. (Doc. 31 at 36)
“[A]n agency’s exercise of discretion must be both reasonable and reasonably
explained.”
Multicultural Media, Telecom & Internet Council v. Fed. Commc’ns Comm’n
,
Because CDC enjoys heightened authority if regulating vessels arriving from abroad, as discussed above, Section 70.2 obligates the director to make a determination “that the measures taken by health authorities of any State . . . are insufficient to prevent the spread of any of the communicable diseases[.]” Section 70.2, which emphasizes local health authorities, is intended to bridle the federal government and to encourage federalism.
The conditional sailing order discusses cruise operators’ “steps to improve their public health response to COVID-19,” but the conditional sailing order finds that “transmission has not been controlled sufficiently by the cruise ship industry.” (Doc. 1-3 at 13, 17–18) Further, the conditional sailing order explains that under Section 70.2 the director determines that state and local measures are “inadequate” because “cruise ships by their very nature travel interstate and internationally and can move beyond the jurisdictional boundaries of any single state or local health authority.” (Doc. 1-3 at 19)
But the conditional sailing order’s global dismissal of state and local health
measures fails to offer the type of reasoned finding required by Section 70.2. The
conditional sailing order says absolutely nothing evaluative about any “measure
taken by health authorities of any State.” Instead, the conditional sailing order
determines that all non-federal measures are inherently “inadequate” because cruise
ships travel interstate and internationally, a determination that falls far short of
conducting a reasoned finding that the measures “taken by health authorities of any
State” are insufficient to prevent contagion.
Pendergrass
,
The APA imposes an obligation to “overturn agency actions which do not
scrupulously follow the regulations and procedures promulgated by the agency
itself.”
Simmons v. Block
,
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.
See Am. Fed’n of Lab.
,
To recapitulate, 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. C. Count IV
Florida’s next challenges pertain to CDC’s alleged procedural failures under the APA. According to Florida, the conditional sailing order (1) encumbers individual rights and obligations, (2) constitutes a “major rule with at least a $100 million dollar impact,” (3) fails to provide notice and comment, and (4) improperly employs the “good cause” exception. CDC denies any need to provide notice and comment because the conditional sailing order “is an order, not a rule”; because the conditional sailing order meets the “good cause” standard; and because Florida suffered no prejudicial error. (Doc. 31 at 40–41)
Although CDC attempts to frame the conditional sailing order as the “conditioning of a license,” the conditional sailing order imposes in the first instance a license requirement (among a litany of other requirements), which attaches to a cruise vessel before leaving a U.S. port. Violation of the conditional sailing order triggers a serious consequence, as discussed earlier. The conditional sailing order is a rule and, moreover, the conditional sailing order acknowledges that, if the conditional sailing order is a rule, “it would be a major rule.” (Doc. 1-3 at 19) The APA therefore obligates CDC to treat the conditional sailing order as a rule and to provide notice and comment. 5 U.S.C. § 553(b).
CDC published the request for information on July 20, 2020, and received 13,000 comments. 85 Fed. Reg. 44083. The conditional sailing order mentions the subject of some comments and states that CDC “carefully considered these comments in drafting” the conditional sailing order. (Doc. 1-3 at 15) Yet the conditional sailing order fails to address which measures CDC “carefully considered,” the conditional sailing order fails to evaluate and respond to any comment, and the conditional sailing order pronounces that the “CDC bases its public health determinations on the best available science and not on public opinion.” (Doc. 1-3 at 15) Attempting to justify CDC’s omission, the conditional sailing order insists that notice and comment “are not required because CDC has already obtained public comment and good cause exists.” (Doc. 1-3 at 19) And the conditional sailing order cites “the public health emergency caused by COVID-19” as supplying the “good cause” to forgo notice and comment. Also, in support of the “good cause” exception, the conditional sailing order explains that “it would be impracticable and contrary to the public’s health” to follow notice and comment procedures. (Doc. 1-3 at 19)
To satisfy its notice-and-comment obligations under the APA, “an agency
must consider and respond to significant comments received during the period for
public comment.”
Perez v. Mortg. Bankers Ass’n
,
The “good cause” exception, “narrowly construed and only reluctantly
countenanced,”
[44]
Mack Trucks, Inc. v. EPA
,
Donovan,
Also, an agency may employ the “good cause” exception “when the agency
for good cause finds . . . that notice and public procedure thereon are . . . contrary to
the public interest.” 5 U.S.C. § 553(b)(B).
[45]
But this exception typically applies to
financial regulations effectively thwarted by notice and comment,
[46]
and CDC’s
burden in issuing CDC’s findings of good cause is to “demonstrate why notice and
comment would be
detrimental
to the public interest.”
Ass’n of Cmty. Cancer Centers v.
Azar
,
Typically, the facts and context of each instance dictate whether “good cause”
existed during enactment.
See Mid–Tex Elec. Coop. v. FERC
,
CDC lacked “good cause” to evade the statutory duty of notice and comment.
First, almost no one doubts that COVID-19 presents a legitimate health concern, and
almost no one doubts that the uncertainty was much greater in October 2020. HHS
declared COVID-19 a public health emergency early in 2020 and suspended cruises
beginning in March 2020 through October 2020 under a series of no-sail orders. And
even the Cruise Line International Association, the cruise industry’s leading trade
group, which includes ninety-five percent of cruise vessels, voluntarily suspended
U.S. operations from April 2020 until October 31, 2020.
[47]
Press Release, CLIA,
Cruise Lines Int’l Ass’n, CLIA and Its Ocean-Going Cruise Line Members Announce Third
Voluntary Suspension of U.S. Operations
(Aug. 5, 2020). Therefore, COVID-19 might
have constituted an acute health threat in October 2020, but the no-longer-new
COVID-19 pandemic is insufficient for “good cause” in October 2020, two-hundred-
and-thirty-two days after cruising ceased.
Regeneron Pharms., Inc. v. United States Dep’t
of Health & Hum. Servs.
,
Exhibiting the same pattern of evasion, CDC published the request for
information more than three months before issuing the conditional sailing order.
85 Fed. Reg. 44083 (Jul. 2020). By September 21, 2020, CDC received roughly
13,000 comments. During that time, CDC had ample time to effect notice and
comment.
Regeneron Pharms.
, 2020 WL at *12 (“CMS could have announced a
NPRM in April, when these effects were at their worst. It could have done the same
in July 2020, when . . . COVID cases increased . . . . Delays after the MFN Order
suggest a lack of urgency, including the two months between the executive order
being announced and publicly issued[.]”). CDC might have justifiably attempted to
invoke the “good cause” exception in the original no-sail order (and perhaps even in
an extension), but by October 2020, after the cruise industry had been shut down for
seven months, a claim of “good cause” to avoid notice and comment must fail.
Nat.
Res. Def. Council
,
Next, the stated purpose of the conditional sailing order undermines CDC’s
suspension of notice and comment under “the [COVID-19] public health
emergency.” (Doc. 1-3 at 19) The conditional sailing order purports to establish a
“framework” to re-open sailing because “[t]he benefits of this framework outweigh
the costs of not allowing cruise ships to sail.” (Doc. 1-3 at 16) But unlike the no-sail
orders, the conditional sailing order contemplates a trade-off that invites more risk
than the no-sail orders, which contemplated a zero-risk — no sailing. Accordingly,
CDC cannot justify the “good cause” exception by citing an emergency that the
conditional sailing order is not directly tailored to “remedy.”
Mack Trucks, Inc. v.
EPA
,
Finally, rulemaking is the business of trade-offs, and public health is one
among many considerations that should contribute to balancing competing interests.
Eliminating notice and comment from an agency’s rulemaking “invariably detracts
from the fairness, wisdom, and political legitimacy of a rule.” H ICKMAN & P IERCE , A DMINISTRATIVE L AW T REATISE § 5.10 (6th ed. 2020). “The more expansive the
regulatory reach of these rules, of course, the greater the necessity for public
comment.”
[48]
Am. Fed’n of Gov’t Emp., AFL-CIO v. Block
,
The conditional sailing order purports to expansively regulate an entire
industry and has a dramatic impact on the economy — and on a few states
especially. (Doc. 1-3) (acknowledging that the Office of Information and Regulatory
Affairs characterizes the conditional sailing order as a “major rule”). CDC cannot
reasonably assert that the conditional sailing order, which touches billions of dollars
in the economy and hundreds of thousands of people, is “inconsequential to the
industry and to the public.”
Mack Trucks
,
The conditional sailing order states dismissively that “CDC bases its public
health determinations on the best available science and not on public opinion.”
(Doc. 1-3 at 15) Although CDC certainly should base scientific determinations on
“the best available science,” the conditional sailing order and the series of “orders”
that followed “imposed new duties” on an entire industry.
Nat’l Nutritional Foods
Ass’n v. Kennedy
,
Finally, CDC has still initiated no notice and comment for either the
conditional sailing order or the series of orders that followed. CDC’s continued
failure presents at least three problems. First, if “good cause” was lacking in October
2020, “good cause” is certainly lacking now.
Kollett v. Harris
,
To excuse its oversights, CDC offers a gloss on the conditional sailing order with a post hoc appeal to the doctrine of “harmless error.” (Doc. 31 at 42); 5 U.S.C. § 706 (“[D]ue account shall be taken of the rule of prejudicial error.”). Yet CDC’s oversights are anything but harmless. If CDC’s “harmless error” argument attempts to suggest that the conditional sailing order was unimportant or minor in impact, that position already met with rejection. To the extent that CDC argues that Florida suffered no prejudice, that argument is equally unavailing. Florida’s evidence persuasively demonstrates injury to cruise companies, port authorities, states, and the public. CDC’s failure to comply with Section 553 of the APA, which might have avoided or mitigated some of the deficiencies in the conditional sailing order and later “technical instructions,” constitutes prejudicial error.
IRREPARABLE INJURY
Although likely to succeed on the merits, Florida must establish that without a
preliminary injunction Florida faces a substantial likelihood of an irreparable injury.
Siegel v. LePore
,
First, CDC argues that Florida waited too long to begin the present action.
CDC contends that Florida’s “unexplained delay undercuts any sense of urgency,
and therefore, [Florida] fails to demonstrate a sufficient need for a preliminary
injunction.” (Doc. 31 at 18) (citing
Seiko Kabushiki Kaisha v. Swiss Watch Int’l, Inc.,
Although “a delay in seeking a preliminary injunction of even only a few
months — though not necessarily fatal — militates against a finding of irreparable
harm,” Florida offers a reasonable explanation that satisfactorily explains Florida’s
timing of this action.
Wreal, LLC v. Amazon.com, Inc.
,
Next, CDC argues that Florida’s financial injury cannot qualify as an
irreparable injury. (Doc. 31 at 19) CDC correctly notes that a financial injury is
usually compensable by a payment of money and is, therefore, nor irreparable.
Snook v. Tr. Co. of Georgia Bank of Savannah
,
Relying mostly on non-binding precedent, almost all of which is outside the
Eleventh Circuit, CDC responds by arguing that Florida’s injury must arise to a
“significant” amount to qualify as irreparable. (Doc. 31 at 19–20) (citing
Air Transp.
Ass’n of Am., Inc. v. Exp.-Imp. Bank of the U.S.
,
As a result of the activity of the cruise industry, Florida businesses received just over $9.0 billion, or 36 percent of the direct expenditures generated by the cruise industry in the United States. Due to the absolute scale of the industry, direct expenditures in Florida impacted just about all segments of the economy, including recreation and amusement establishments, wholesalers of products purchased by cruise lines, manufacturers of communications and navigation equipment, producers of machinery and equipment such as engine parts, boilers, laundry equipment and computers, manufacturers of fabricated metal products such as locks and security equipment and business service providers such as interior designers and computer services consultants . . . . these direct expenditures generated total economic impacts of almost 159,000 jobs and $8.1 billion in income throughout the Florida during 2019.
(Doc. 45-1 at 45–46) A “fact-finding investigation” by the Federal Maritime
Commission confirms that Florida’s economy has lost more than $22 billion and
169,000 jobs since cruises and cargo ships have been unable to sail. (Doc. 45-2 at 28;
Doc. 45-27) As long as some cruises remain unable to sail, at least a portion of this
financial loss will reduce state revenue, the effects of which compound owing to the
cruise industry’s ubiquitous footprint on Florida’s economy. Further, every day the
cruise industry faces uncertainty about when cruises can unequivocally resume
sailing, Florida faces an imminent and increasingly likely threat that at least part of
the cruise industry will abandon Florida’s ports, which would perpetuate the
economic harm resulting from CDC’s regulatory regime.
V.N.A. of Greater Tift Cty.,
Inc. v. Heckler,
Finally, CDC argues that Florida cannot establish irreparable injury because
the cruise industry steadily progresses through the conditional sailing order’s four
phases. (Doc. 67 at 3; Doc. 72 at 4) Reporting the approval (as of June 4, 2021) of
port agreements for twenty-two vessels and two conditional sailing certificates, CDC
argues that Florida speculates about irreparable injury because sailing “is set to
resume as planned.” (Doc. 67 at 3; Doc. 72) As explained in the analysis of
standing, Florida’s injury is not speculative; Florida’s injury “is sufficiently concrete
[and] supported by the record,” and directly caused, at least in part, by the
conditional sailing order, which prevents some cruises from sailing or sailing
profitably — an outcome that derivatively harms Florida’s revenue and economy.
California v. Azar
,
The likelihood of Florida’s irreparable injury is not materially affected by the fact that some cruises are undertaking to comply with the conditional sailing order. As of June 4, 2021, CDC lists only eleven cruise ships ready to begin phase two (of four phases) simulated voyages. CDC has scheduled these voyages to begin no earlier than June 20, 2021, and several begin in August 2021. (Doc. 72-1 at 2–4) Even under CDC’s timeline, few cruise ships, if any, appear poised to qualify by late summer to sail with a satisfactory complement of passengers. For all other ships, the summer season remains almost assuredly lost. The conditional sailing order not only impedes immediate cruising, but the conditional sailing order threatens the economic feasibility of scheduling cruises under restricted sailing. Ships obtaining a conditional sailing certificate remain subject to “restricted passenger voyages,” which, among other things, prevent a cruise ship from offering an “itinerary longer than [seven] days.” (Doc. 1-3 at 33) The restrictions burden the cruise industry’s capacity for profitable sailing. (Doc. 56 at 4–5) In sum, Florida plausibly alleges that the conditional sailing order cripples the cruise industry’s ability to begin sailing and to sail in a manner that avoids economic loss as a result of sailing. (Doc. 25 at 22) Owing to a disabled cruise industry, both obstacles impose an imminent and irreparable financial injury on Florida.
The Cruise Lines International Association states: “the effect of these new mandates is that nearly half a million Americans — from longshoreman and ground transportation operators to hotel, restaurant, and retail workers, travel agents, and tens of thousands of businesses that service cruise ships, are continuing to financially suffer with no reasonable timeline provided for the safe return of cruising.” (Doc. 49- 9 at 2) Florida establishes an imminent, actual, and irreparable injury.
BALANCING OF THE EQUITIES AND THE PUBLIC INTEREST
Because Florida requests an injunction against an agency of the federal
government, the analysis of the balance of equities and the analysis of the public
interest merge.
Nken v. Holder
,
States, including Florida, have crafted and implemented measured re-opening plans that address both the public health risk and the economic damage associated with COVID-19. And since early 2021, highly effective vaccines are available across the United States. More than forty percent of United States residents (minors included) are fully vaccinated.
As of June 11, 2021, about sixty-four percent of adults have received at least one dose of a vaccine. Fifty-three percent of adults are fully vaccinated. [50] In an effort to achieve “herd immunity,” which approaches steadily, states administer more than a million vaccines a day. Recognizing the effectiveness of vaccines, CDC admits that persons “do not need to self-quarantine after cruise travel” because “fully vaccinated people can travel at low risk to themselves.” (Doc. 45-8 at 2; Doc. 45-15 at 2) Even New York has “re-opened.” Governor Cuomo announced that, because 70% of New York adults are vaccinated, the longstanding “closing” of New York can end.
CDC’s regulation of comparable industries confirms the success combating COVID-19. Rather than shutting down other industries catering to large groups of people, CDC offers voluntary “recommendations” and “considerations” (which CDC could offer cruises) to promote the safe operation of hospitality and leisure industries. For example, “to slow the spread of COVID-19” (Doc. 45-4, Doc. 45-5, Doc. 45-6), CDC publishes guidance about the safe operation of a hotel, a casino, and a sporting arena or stadium — each a venue permitted to accommodate hundreds of, or thousands of, people for an extended time. Further, CDC offers guidance to prevent the spread of COVID-19 on an airplane, which safely transports thousands of people each day. (Doc. 45-11) The safe operation of comparable industries strongly counsels against finding that moderating the conditional sailing order would endanger the public health.
CDC responds by arguing that cruise ships “present a unique setting that is particularly conducive to transmission of the virus.” (Doc. 31-1 at 33) In light of the proliferation of vaccines, CDC’s own data weakens this conclusion. CDC reports that “if passengers originate from a community with a medium prevalence of COVID-19 and 50% of those passengers are fully vaccinated . . . modeling data estimates that the passengers’ risk of introducing COVID-19 onto the ship has only been reduced by 62.8%.” (Doc. 31-1 at 28) But the presence of COVID-19 in the community decreases daily, and vaccinations continue to rise. A passenger’s risk of introducing COVID-19 onto a ship decreases as COVID-19 abates. CDC relies on in-house “modeling data,” which is unpublished, unrefereed, and undisclosed by CDC and which reportedly offer only conclusory, modeling-based comparisons to other “densely populated” living configurations, which currently thrive without the same restrictions imposed on cruises. (One supposes that if this data were convincing, CDC in recent months might have revealed the study, the model, the results, the methodology, and the researchers.)
Even absent the conditional sailing order, the cruise industry appears poised to implement strong and proven safety measures for combating COVID-19. (Doc. 56 at 18–21; Doc. 1-3 at 13–14; Doc. 45-10 at 7) The cruise industry not only maintains a self-interest in offering safe cruises, but the cruise industry “ha[s] worked together to develop layers of protection,” including precautions the cruise industry proposed to CDC. (Doc. 25-10 at 7) Before the conditional sailing order, the industry formed a “Healthy Sail Panel” of public health experts to design “practical, adaptable, and science-based solutions for mitigating and living with COVID-19.” (Doc. 1-3 at 13– 14) The Cruise Line International Association established mandatory COVID-19 protocols, which include testing, masks, distancing, and ventilation. (Doc. 56 at 19) And in Florida, ports offer vaccination programs to support the cruise industry. (Doc. 56 at 20) In sum, even as COVID-19 subsides, precautions persist and will continue to contain COVID-19’s (diminishing) spread.
The success containing COVID-19 in 2021 confirms CDC’s initial finding that the benefits of sailing “outweigh the costs of not allowing cruise ships to sail.” (Doc. 1-3 at 16) Cruises now safely sail all over the world with protocols designed to minimize the spread of COVID-19. Since July 2020, more than 400,000 people have sailed on cruises abroad. (Doc. 45-9; Doc. 45-10) In Europe, thousands sail on cruises without debilitating infections of COVID-19. (Doc. 25-29 at 13) Although citing examples of localized infection (or, at least, “positive” test results) among persons on cruise ships abroad, CDC fails to persuasively show that the infections are not successfully confined or that the infections otherwise endanger a broadly vaccinated group of passengers and the public. (Doc. 31-1 at 80) The availability of vaccines and testing and the comparatively trivial incidence of infection on foreign cruises — all quickly identified and confined — commends optimism about the safe operation of sailing in the United States, which enjoys high rates of vaccination and greatly enhanced, on-board containment mechanisms.
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. In fact, CDC’s conditional sailing order relies on stale data obtained to justify the no-sail orders when the danger posed by COVID-19 was qualitatively and quantitatively different from today. (Doc. 1-3 at 8–19; Doc. 31-1 at 15, 17)
Conversely, Florida’s injury and the injury to Florida’s economy grows by
the day. In 2019, more than thirteen million cruise passengers and crew embarked
and disembarked in Florida and patronized Florida’s businesses. (Doc. 45 at 14)
Even if a fraction of 2019’s demand for sailing exists in 2021, as long as sailing
remains restricted or reduced, Florida suffers a derivative injury to revenue and to
the economy. Without the expeditious resumption of sailing, Florida’s injury
threatens to become permanent owing to the cruise industry’s credible threat
(Docs. 45-10; 28; 29) of leaving Florida.
All. for the Wild Rockies v. Cottrell
, 632 F.3d
1127, 1138 (9th Cir. 2011) (“[T]he effect on the health of the local economy is a
proper consideration in the public interest analysis.”). And Florida’s high likelihood
of success on the merits ensures that a preliminary injunction would serve the
public interest. After all, “[t]here is generally no public interest in the perpetuation
of unlawful agency action.”
League of Women Voters of United States v. Newby
,
CONCLUSION
This order resolves Florida’s motion for a preliminary injunction. In brief, this order confirms Florida’s constitutional and statutory standing to assert the claims in the complaint. This order finds that Florida is highly likely to prevail on the merits of the claim that CDC’s conditional sailing order and the implementing orders exceed the authority delegated to CDC under Section 264(a). Alternatively, this order (1) finds that, if Section 264(a) includes the comprehensive authority claimed by CDC to promulgate and enforce regulations, Section 264(a) likely constitutes an unconstitutional delegation of legislative power to CDC because the delegation fails to convey any “intelligible principle” to guide CDC’s exercise of authority and (2) finds that the Supreme Court seems likely to impose soon a more demanding standard, which Section 264(a), as interpreted by CDC, is even more likely to fail. Additionally, this order determines that Florida is likely to prevail on at least one, but perhaps not all, of the several other claims based on the APA.
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. (Docs. 45-4; 45-5;45-6; 46-4)
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. Additionally, if circumstances materially change at any time, either party can request a hearing to modify this injunction, a hearing will occur immediately (within twenty- four hours, if necessary), and an order resolving the motion will issue immediately.
The parties are ordered to return to mediation before Magistrate Judge Anthony Porcelli at a time and place ordered by Judge Porcelli and in accord with the terms (including confidentiality) of the earlier mediation order (Doc. 51).
ORDERED in Tampa, Florida, on June 18, 2021.
Notes
[1] The conditional sailing order states that “[i]n the event that this Order qualifies as a rule under the APA, notice and comment and a delay in effective date are not required because CDC has already obtained public comment and good cause exists.” (Doc. 1-3 at 19) And the conditional sailing order further states that, if the order qualifies as a rule, “the Office of Information and Regulatory Affairs has determined that it would be a major rule.” (Doc. 1-3 at 19)
[2] Defining a “cruise ship” as a “passenger-carrying vessel operating in U.S. waters with the capacity to carry 250 or more individuals . . . with an itinerary anticipating an overnight stay onboard.” The conditional sailing order regulates vessels intending to travel in “international, interstate or intrastate waterways . . . .” (Doc. 1-3 at 10)
[3] The Healthy Sail Panel developed recommendations for safely resuming sailing. Also, the conditional sailing order cites a “global science summit” convened by the World Travel & Tourism Council and Carnival Corporation to address COVID-19 protocols and safety measures. (Doc. 1-3 at 14)
[4] The parties commonly designate this requirement “Phase 2A.” In effect, CDC’s “four- phase plan” is actually a five-phase plan (at least).
[5] This timeline reports CDC’s regulations issued after May 5, 2021: May 14, 2021 — CDC revises the “operations manual for simulated and restricted voyages,” the “technical instructions for simulated voyages,” and the “technical instructions for mitigation of COVID-19 among cruise ship crew.” (Doc. 72-1 at 3–4) May 18, 2021 — CDC clarifies “disembarkation testing.” May 26, 2021 — CDC provides “additional discretionary considerations for ships with at least 98% of crew and 95% of passengers fully vaccinated.” June 4, 2021 — CDC “clarify[ies] mask use for crew who are not fully vaccinated” and revises the “cruise ship color status.” (Doc. 72-1) https://www.cdc.gov/quarantine/cruise/index.html
[6] CDC argues that Florida disregards federal reimbursement for state unemployment payments. But the American Rescue Plan of 2021, Pub. L. No. 117-2 § 9017, reimburses a state for “short-time compensation” programs, which amount to a limited type of unemployment spending. “Short-time compensation” reimbursement is brief (until September 2021), and Florida attests (Doc. 47 at 148) — without opposition from CDC — that the declaration (Doc. 45-19) fully accounts for federal reimbursement.
[7] CDC resists providing a reliable and steady timeline for resuming cruises. At a March 18, 2021 Senate Committee hearing, Senator Lisa Murkowski asked the CDC director to provide a schedule for phase two. The CDC director replied “I can’t . . . I don’t believe it’s solely within our jurisdiction to address, it’s not necessarily a CDC [decision] . . . . I believe Department of Transportation, OMB, there are numerous others that are making these decisions.” (Doc. 1-8 at 7)
[8] CDC implies that Florida’s recent law, S.B. 2006 (Fla. 2021), prohibiting so-called “vaccine passports” might “delay cruise ships from resuming operations in Florida.” (Doc. 31 at 11; Doc. 72 at 5) Although a plaintiff’s contribution to an injury can defeat standing, S.B. 2006 fails to definitively impede ships from resuming operation. 15 M OORE ’ S F EDERAL P RACTICE , Civil § 101.41, 101-122.17 (2020). S.B. 2006 neither explicitly applies to federal regulation nor necessarily prohibits passengers from volunteering information about vaccination status when deciding the proportion of vaccinated and unvaccinated passengers a cruise can accommodate under federal law. (Doc. 31-4)
[9] After CDC published the May 5, 2021 technical guidance (Docs. 31-4; 31-5), Norwegian Cruise Line’s Chief Executive Officer laments: I seriously doubt we will be able to stand up a vessel out of a U.S. port in July. August is also in jeopardy and it’s all because of the disjointed guidelines from the CDC . . . . What we received yesterday was anything but a clear path to restarting. https://www.cnbc.com/2021/05/06/norwegian-cruise-ceo-says-us-ships-are-unlikely-to-sail-this- summer.html.
[10] CDC’s COVID-19 Operations Manual is available here: https://www.cdc.gov/quarantine/cruise/Covid19-operations-manual-cso.html#vsp-2018- operations-manual
[11] Because Florida sues to prevent financial injury, third-party standing is inapplicable.
Kowalski v. Tesmer
,
[12] See, e.g. , (Doc. 31 at 23) (citing the historical section of CDC’s brief and arguing that deference to public health authorities constitutes a “determination made in the light of history and experience, given the death toll caused by past epidemics like yellow fever”).
[13] Of course, society has quarantined people, animals, and things for thousands of years. Leviticus 13:46, King James Version (“All the days wherein the plague shall be in him . . . he shall dwell alone; without the camp shall his habitation be.”).
[14] Today, after a series of reorganizations, the Public Health Service comprises eight agencies, including CDC.
[15]
See, e.g.
, Act of Feb. 25, 1799, 5 Cong. Ch. 12, 1 Stat. 619 (“[T]he quarantines and other
restraints, which shall be required and established by the health laws of any state . . . respecting any
vessels arriving in, or bound to, any port or district thereof, whether from a foreign port or place,
or from another district of the United States, shall be duly observed by the collectors and all other
officers of the revenue of the United States, . . . and all such officers of the United States shall be,
and they hereby are, authorized and required, faithfully to aid in the execution of such quarantines
and health laws, according to their respective powers and precincts, and as they shall be directed,
from time to time, by the Secretary of the Treasury of the United States.”).
See also Gibbons v. Ogden
,
[16] In fact, a bill aiming to increase the quarantine power within the Maine Hospital Service was rejected in light of opposition to a largely centralized system of quarantine. Among the arguments against federal interference was the argument that the bill would concentrate the quarantine power into too few hands, that the states were better situated to regulate quarantine because the states enjoy more familiarity with local conditions, that federal intervention usurped the states’ police power under the Tenth Amendment, and that federal intervention tends to infringe individual liberty. Bill to Amend an Act Granting Additional Quarantine Powers and Imposing Additional Duties upon the Marine Hospital Service: Hearings on H.R. 4363 Before the H. Comm. On Interstate and For. Commerce , 55 Cong. 2 (Feb. 18, 1898).
[17] See, e.g . R.J. Res. 6, 42 Cong. (June 6, 1872) (instructing medical officers to “visit each town or port on the coast of the Gulf of Mexico and the Atlantic coast, which is subject [to] yellow fever, and . . . confer with the authorities of such port or town with reference to the establishment of a more uniform and effective system of quarantine, and . . . ascertain all facts having reference to the outbreaks of this disease in such ports or towns, and whether any system of quarantine is likely to be effective in preventing invasions of yellow fever, and, if so, what system will least interfere with the interests of commerce at said ports. . . .”).
[18] In fact, Surgeon General Woodworth, the chief pioneer for establishing a national health service and re-invigorating the federal government’s role in quarantine, “considered the detention of a vessel from an infected port, whether sickness existed aboard or not, as unjustifiable beyond the known period of incubation of the disease for which quarantine was to be enforced.” W ILLIAMS , P UBLIC H EALTH S ERVICE , at 73. See also id . at 80 (“[The vessel] might be detained for the full incubation period.”); accord id . at 83 (permitting detention of “suspects . . . only long enough to demonstrate that they were not infected.”).
[19] Also noteworthy, the law limited the Secretary’s exercise of authority by first requiring a determination that local and state quarantine laws were insufficient before implementing interstate quarantine measures. Act of Feb. 15, 1893, 52 Cong., Ch. 114.
[20] Treasury Dep’t, Circular on Vessels from Cholera-Infected Districts, Vol. 7, No. 29 (July 15, 1892).
[21] Id.
[22] Treasury Dep’t, Circular on Quarantine Restrictions Upon Immigration to Aid in the Prevention of the Introduction of Cholera, No. 150 (Sept. 1, 1892). See H OWARD M ARKEL , Q UARANTINE !: E AST E UROPEAN J EWISH I MMIGRANTS AND THE N EW Y ORK C ITY E PIDEMICS OF 1892, 96–7 (Johns Hopkins Univ. Press, 1997) (detailing the attendant circumstances of the twenty- day quarantine).
[23]
See, e.g.
,
Ex parte Co.
,
[24] The Marine Hospital Service’s name was changed to the Public Health Service in 1912.
[25] This is not to say that Congress enabled no new authority or duty. For example, Section 361 of the act, codified as 42 U.S.C. § 264, added to the federal government’s quarantine powers the authority to destroy “animals or articles found to be so infected.” Consolidation and Revision of Laws Relating to the Public Health Service , by Mr. Bulwinkle, from the Committee on Interstate and Foreign Commerce, 78th Congress, 2d Session, House of Representatives, Report No. 1364, pp. 3-4 (April 20, 1944) (“Destruction of infected animals or contaminated articles would be permitted as a part of interstate or foreign quarantine procedures, where such animals or articles are likely to infect human beings with a dangerous disease and no disposition other than destruction can safely be made.”).
[26] For instance, the Act confers special power to the Surgeon General during war, empowers the federal government to conduct medical examinations and to exclude the introduction of people, and extends the quarantine power to aircraft.
[27] If a cruise vessel failed a Vessel Sanitation Program inspection, the vessel was re-inspected within a month or two. If the vessel still failed to conform to sanitation standards, the inspector could recommend against the cruise vessel’s departure or detain the vessel. But penalties of this sort have been extremely rare and, typically, a cruise ship must simply pay the cost of a re-inspection as a penalty. C ENTERS FOR D ISEASE C ONTROL & P REVENTION , Vessel Sanitation Program Operations Manual , at §§ 11.6–10 (Aug. 2005).
[28] The statute refers to the Surgeon General, but for reasons not relevant here, administrative reorganizations transfer to the Secretary of HHS the authority conferred to the Surgeon General. 31 Fed. Reg. 8855, 80 Stat. 1610 (1966).
[29] On appeal, the D.C. circuit likewise relied on “expert public-health judgments” to affirm the district court’s stay. Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs ., 2021 WL 2221646, at *1 (D.C. Cir. 2021).
[30]
Indep. Turtle Farmers of Louisiana, Inc. v. United States
,
[31] See also Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs. , 2021 WL 2221646, at *2 (D.C. Cir. 2021) (same).
[32] Whatever the future application of the “major questions doctrine” may include, the doctrine at minimum serves as a “statutory interpretation doctrine.” Paul v. United States , 140 S. Ct. 342 (2019) (Kavanaugh, J.).
[33] Cf. 42 U.S.C. § 264(d) (allowing interstate apprehension of an individual “infected with a communicable disease in a qualifying stage ” and requiring the individual “to be moving or about to move from a State to another State” or “to be a probable source of infection to individuals who . . . will be moving from a State to another State”).
[34] For example, Section 70.10 permits the director to assess a person’s health by “non- invasive procedures” and Section 70.15 authorizes the quarantine of an “individual” but requires the director to reassess within seventy-two hours “whether less restrictive means would adequately serve to protect the public health.”
[35] For instance, the director can compel contact information from a person who presents a risk of transmitting disease (Sections 71.5 and 71.20(b)); require a report for “any death or any ill person” travelling on a ship destined for an American port (Section 71.21); and suspend the introduction of a person into the United States from abroad (although only for “such period of time that the Director deems necessary to avert [ ] serious danger” of introducing a communicable disease) (Section 71.40).
[36] In these adjoining sentences, the transition from the broad article, “a,” to the more specific article, “the,” preceding “carrier” strongly implies that the section contemplates the same vessel and the same “measures outlined in this part.”
[37] This authority attaches only if the director “has a reason to believe” the carrier or item is infected.
[38] 42 C.F.R. § 71.11 abolishes the bill-of-health requirement prescribed by Section 269. This replacement was coupled with the requirement that “the master of a ship destined for a U.S. port . . . report immediately to the quarantine station . . . the occurrence, on board, of any death or any ill person among passengers or crew.” 42 C.F.R. 71.21.
[39] Because this order holds that the conditional sailing order exceeds CDC’s authority, Florida’s other APA arguments will receive abbreviated treatment.
[40] In this sense, the conditional sailing order “gives rise to legal rights.”
Manufactured Hous.
Inst. v. U.S. Env’t Prot. Agency
,
[41] For example, CDC’s allowance of foreign travel and cruising, although a seemingly
inconsistent oversight, fails to render the conditional sailing order arbitrary and capricious.
Mobil Oil
Expl. & Producing Se. Inc. v. United Distribution Companies
,
[42] In this circumstance, “due account” of the rule of prejudicial error might suggest that
CDC’s mistake “ha[d] no bearing on the ultimate decision.”
Sierra Club v. Slater
,
[43] Additionally, although the APA imposes no duty to entitle a document “notice of
proposed rulemaking,”
Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania
, 140 S. Ct.
2367, 2385 (2020), sufficient notice requires publishing in the Federal Register “the terms or
substance of the proposed rule or a description of the subjects . . . [such that] the affected party
‘should have anticipated’ the agency’s final course in light of the initial notice.’”
Nat’l Lifeline Ass’n v.
Fed. Commc’ns Comm’n
,
[44] Precedent demonstrates how infrequently the exception should receive acceptance.
See, e.g.
,
Am. Fed’n of Gov’t Emp., AFL-CIO v. Block
,
[45] Other exceptions not relevant here also apply — for example, “good cause” might exist if notice and comment are entirely “unnecessary” because the rule is ministerial or perfunctory. 5 U.S.C. § 553(b)(B).
[46]
See, e.g.
,
Mobil Oil Corp. v. Dep’t of Energy
,
[47] The Cruise Line International Association voluntarily extended the suspension further until December 31, 2020. Press Release, CLIA, Cruise Lines Int’l Ass’n, Reaffirming Commitment to Stringent Protocols - Voluntarily Extend Suspension of U.S. Operations (Nov. 3, 2020).
[48] This is to say nothing of the additional requirements imposed if an agency’s action qualifies as a “major rule,” as here. See H ICKMAN AND P IERCE , A DMINISTRATIVE L AW T REATISE § 11.1 (6th ed. 2020) (describing the requirements for a major rule); Executive Order 13132 (1999) (requiring an agency to confer with state and local officials if the agency’s rulemaking “ha[s] substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government”).
[49] Also, the technical instructions say woefully little about how the proposed measures relate to scientific data about preventing transmission. For example, to bypass a simulated voyage, a vessel operator must attest that 98% of crew and 95% of passengers are vaccinated. But CDC fails to explain why the vaccination rate is so much higher than the rate it deems sufficient to obtain so- called “herd immunity.” To the extent the conditional sailing order’s cited literature could explain the effect of the technical instructions’ measures, CDC relies on scientific literature that, by April and May 2021, was stale. On the subject of scientific data, the conditional sailing order also cites scientific evidence supporting the need for measures to prevent COVID-19 (for example, high rates of COVID-19 infection and heightened transmission for a cruise vessel), but the conditional sailing order cites no evidence supporting the efficacy of the measures imposed.
[50] https://covid.cdc.gov/covid-data-tracker/#vaccinations.