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46 minutes ago, cruisellama said:

About time - seems like the lines could join the suit for loss of revenue during the gov't directed shutdown.

“Seems like” is not a strong argument for a legal case. A frustration is not a tort. 

That said, I too have much frustration with lack of CDC (government) action. 

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I live in FL. I like most things Desantis does, not all, but most. Threatening to sue is political posturing and that's not to say this isn't the place for it. About a month ago I did some research on this - I'm not a layer so, take it for what it's worth. But I understand the legal basis upon which CDC recommended and HHS promulgated the NSO  and subsequently the CSO. Both of these engaged multiple agencies and relied on taking action through complex, existent legislation. It is very difficult to know who is in charge and who are the decision makers. IMO, it's Becerra of HHS but that is not altogether clear.

The questions posed by the Alaska delegation to Director Walenski (see Matt's post on the home page) highlight the complexity of what is keeping the cruise industry banned from operating from US ports and who, in government can grant relief. On review of this a couple months ago, I didn't find anything that the US Government is doing with the CSO that it is not authorized to do under a PHE that was declared in January of 2020 and has been continually renewed every 90d. Last renewal was on January 7th with the next renewal due before it's expiration on April 21st. I posted elsewhere that it is likely the PHE will be extended for another 90d. That does not mean, however, that nothing can be done to get cruise ships sailing from US ports.

There are two legitimate gripes but neither of them form a legal basis upon which a violation of US code or law or a tort claim upon which an injunction might be granted: (1) The failure of the CDC to timely release the "technicals" everyone is talking about that tell the cruise industry how to move through the 4 phases CDC laid out in October last year. (2) Those phases have been overcome by events. They're simply not relevant and neither is the CSO now that vaccines are out there and proven to be effective in mitigating both the disease burden and spread of SARS2.

The real stumbling block to legal action though is jurisdictional. Who would hear the complaint even if one could be brought. So many obstacles that talking about legal action, IMO, is no more than good theater.       

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3 hours ago, JeffB said:

There are two legitimate gripes but neither of them form a legal basis upon which a violation of US code or law or a tort claim upon which an injunction might be granted: (1) The failure of the CDC to timely release the "technicals" everyone is talking about that tell the cruise industry how to move through the 4 phases CDC laid out in October last year. (2) Those phases have been overcome by events. They're simply not relevant and neither is the CSO now that vaccines are out there and proven to be effective in mitigating both the disease burden and spread of SARS2.

The real stumbling block to legal action though is jurisdictional. Who would hear the complaint even if one could be brought. So many obstacles that talking about legal action, IMO, is no more than good theater.       

So basically what you are saying is there is no viable legal recourse for states or cruise lines.  Lets say for the sake of argument if President Biden were to intervene like President Trump did the CDC still has the legal authority to come up with another order that could potentially block the resumption of cruising.

 

I think you are correct and the CDC will extend the public health emergency, but my questions are if they allowed the PHE to expire could that potentially end the CSO as well by default?  I guess what I'm asking is this are there legal limits to the CDC's power in this situation and if so does anyone know what those limits are?

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My understanding is the underlying responsibility of the CDC is to keep the public “safe”.

Safe is a subjective word. Your safe is likely different than my safe. What many are criticizing (rationally) is that the CDC still considers cruising an unacceptable public health risk. As more and more evidence is gathered rebutting this belief, the likelier the CDC is to lift or change their position. 

Regarding you question of “limits”, my interpretation is the CDC is limited to policy which is deemed in the interest of public health. 
 

Unfortunately the CDC is not mandated to take into account the emotional, social and economic impacts of their actions. 
 

These are only my opinions. 

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The Public Health Emergency was declared by Alex Azar, Secretary of the US Department of Health and Human Services, not by the CDC but that is largely a matter of semantics.  The CDC is part of the US Department of Health and Human Services so it's not like these are two parts of the government that aren't in sync. 

The PHE will be renewed in the next week or two, there is no way HHS is ready to call the emergency over.

https://www.phe.gov/newsroom/Pages/healthactions.aspx

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11 hours ago, JeffB said:

I live in FL. I like most things Desantis does, not all, but most. Threatening to sue is political posturing and that's not to say this isn't the place for it. About a month ago I did some research on this - I'm not a layer so, take it for what it's worth. But I understand the legal basis upon which CDC recommended and HHS promulgated the NSO  and subsequently the CSO. Both of these engaged multiple agencies and relied on taking action through complex, existent legislation. It is very difficult to know who is in charge and who are the decision makers. IMO, it's Becerra of HHS but that is not altogether clear.

The questions posed by the Alaska delegation to Director Walenski (see Matt's post on the home page) highlight the complexity of what is keeping the cruise industry banned from operating from US ports and who, in government can grant relief. On review of this a couple months ago, I didn't find anything that the US Government is doing with the CSO that it is not authorized to do under a PHE that was declared in January of 2020 and has been continually renewed every 90d. Last renewal was on January 7th with the next renewal due before it's expiration on April 21st. I posted elsewhere that it is likely the PHE will be extended for another 90d. That does not mean, however, that nothing can be done to get cruise ships sailing from US ports.

There are two legitimate gripes but neither of them form a legal basis upon which a violation of US code or law or a tort claim upon which an injunction might be granted: (1) The failure of the CDC to timely release the "technicals" everyone is talking about that tell the cruise industry how to move through the 4 phases CDC laid out in October last year. (2) Those phases have been overcome by events. They're simply not relevant and neither is the CSO now that vaccines are out there and proven to be effective in mitigating both the disease burden and spread of SARS2.

The real stumbling block to legal action though is jurisdictional. Who would hear the complaint even if one could be brought. So many obstacles that talking about legal action, IMO, is no more than good theater.       

Hi Jeff, for us Non US readers can you tell me what HHS, NSO, PHE  and CSO mean? 

thanks,

John

 

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 but my questions are if they allowed the PHE to expire could that potentially end the CSO as well by default?  I guess what I'm asking is this are there legal limits to the CDC's power in this situation and if so does anyone know what those limits are?

 

Twangsters and Smokey Bandit have already addressed this ...... It's unlikely that the Biden administration will allow the PHE to expire. The messaging coming from the WH, Fauci and Walenski suggests there is no way it will expire. But, technically, the CSO rests on the existence of the PHE. If the PHE were to expire then technically the CSO is no longer enforceable - not sure the cruise lines would test that though.

The more likely scenario for relief is a continuation of pressure on the CDC by members of Congress along with news reporting of it that highlights the irrationality of the CSO, the CDC's lack of transparency and their inexcusable foot dragging in releasing steps to a path forward in a resumption of operations from US ports for the cruise lines. 

10 hours ago, AlmondFarmer said:

Safe is a subjective word. Your safe is likely different than my safe. What many are criticizing (rationally) is that the CDC still considers cruising an unacceptable public health risk. As more and more evidence is gathered rebutting this belief, the likelier the CDC is to lift or change their position. 

This line of thinking also applies to the issue of relief. There is research that both supports and refutes the CDC position on the risks to public health of the kinds of congregate settings cruising presents. IMO, the cruise lines have demonstrated beyond any doubt that they can mitigate those risks to near zero in all phases of operations. Keep in mind, they have done this in locations where the level of circulating virus is very low to none. Broward and Miami Dade Counties, homes to PEV and POM, both have positivity rates of around 6-7% and rising in the last week. The CDC could correctly argue that those locations have too much circulating virus to be considered safe to sail from. My response to that concern would be (1) Vaccinations and (2) that the cruise lines, port and public health officials in those locations have already worked out plans to deal with an infection occurring in conjunction with cruise ship operations should that unlikely event actually happen.  

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The Governor is also wanting to sue for loss of revenue for our ports. 7 billion a year is a substantial amount of our travel revenue in the state. Not to mention the job losses up and down the supply chain. 
 

I’m pretty sure the PHE will be extended for reasons I’m told not to post here 😁

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13 minutes ago, TXcruzer said:

Can someone point me to a list of successful cases of state government suing federal government? 
Being from TX, we are no stranger to suing the feds, but I can’t recall many successes. 

I hope you have a few hours to kill:

 

https://attorneysgeneral.org/multistate-lawsuits-vs-the-federal-government/list-of-lawsuits-1980-present/

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Interesting stuff smokeybandit ....... I looked at the cases on the first 4 pages involving the Biden and Trump administrations. I didn't find anything involving HHS and the PHE. I'm not certain but it seems that attorneys have probably looked at HHS's authority to issue PHE's and found them lawful. I still hold, unless shown otherwise, that mounting a successful suit against the FEDs in this narrowly defined circumstance is a non-starter. Too many obstacles to a successful challenge. 

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1 hour ago, smokeybandit said:

Thanks for the link, it is fascinating.

 

So out of 410 state levied lawsuits dating back to the beginning of the Obama administration, 45 were successful on their merits. Of these 45;  2 were against HHS.

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This is why the CDC's imposition via the NSO and CSO on free trade and unrestrained commerce seems like such an easy target for a law suit. I dunno, maybe it is, maybe it isn't. One thing I feel fairly confident about is that the declaration of a PHE gives enormous authority to government that appears on its face to be entirely lawful. We ought to be concerned about that in the future.

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