CDC Eviction ban overturned- What does this mean for cruising?

[bryresangel]

https://www.bloomberg.com/news/articles/2021-05-05/u-s-judge-blocks-cdc-s-nationwide-eviction-moratorium

Heard a federal judge ruled that the CDC exceeded its authority for blocking landlords from evicting. Any thoughts from people smarter than me if a similar ruling against the cruise line restrictions are a possibility.

 

[smokeybandit]

Here's the decision. It sure reads a lot like what a couple of Florida's arguments against the CSO were. But Florida added more and Alaska added even more when it jumped in.

 

https://www.dropbox.com/s/cejir39xlxrv16b/ALABAMA ASSOCIATION OF REALTORS et al v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES.pdf?dl=0

[twangster]

[dswallow]

I've been keeping an up-to-date collection of relevant materials on the docket for the Florida v. HHS, CDC case. You can review many of the filings from there.

Florida v. HHS, CDC (2150.com)

[0_0]

IMO, here's a few of the most relevant paragraphs from the judgement.

Page 11
Section264(a) provides the Secretary with general rulemaking authority to “make and enforce such regulations,” id.§ 264(a)(emphasis added),that “in his judgment are necessary” to combat the international or interstate spread of communicable disease, id. But this broad grant of rulemaking authority in the first sentence of§ 264(a)is tethered to—and narrowed by—thesecondsentence. It states: “For purposes of carrying out and enforcing such regulations,” id.(emphasis added), the Secretary“ may provide for such inspection, fumigation, disinfection, sanitation, pest extermination [and] destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.” Id.

Excerpt from Page 13 of the judgement.

"The Department’s interpretation goes too far. The first sentence of§ 264(a)is the starting point in assessing the scope of the Secretary’s delegated authority. But it is not the ending point. While it is true that Congress granted the Secretary broad authority to protect the public health, it also prescribed clear means by which the Secretary could achieve that purpose. See Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134, 139 (D.C. Cir.2006).And those means place concrete limits on the steps the Department can take to prevent the interstate and international spread of disease. See supra at 11. To interpret the Act otherwise would ignore its text and structure."

Page 14 excerpt

 

"An overly expansive reading of the statute that extends an early unlimited grant of legislative power to the Secretary would raise serious constitutional concerns, as other courts have found. See, e.g., Skyworks,2021 WL 911720, at*9(noting that such a reading would raise doubts as to “whether Congress violated the Constitution by granting such abroad delegation of power unbounded by clear limitations or principles.”);Tiger Lily,992F.3d at523(same);id.(“[W]e cannot read the Public Health Service Act to grant the CDC power to insert itself into the landlord-tenant relationship without some clear, unequivocal textual evidence of Congress’s intent to do so”);Terkel, 2021 WL 742877, at *4–6(holding that the CDC’s eviction moratorium exceeds the federal government’s power under the Commerce Clause).Congress did not express a clear intent to grant the Secretary such sweeping authority."

[LovetoCruise87]

Waiting patiently for next week. The hearing is slated for this coming Wednesday. So, we should know something soon after that. The fact that a federal judge ruled the CDC overstepped it's authority in that case, does give a small bit of hope for cruising. 

[smokeybandit]

18 minutes ago, LovetoCruise87 said:

The hearing is slated for this coming Wednesday. So, we should know something soon after that

It may be a week or two after the hearing for any results.

[twangster]

It's a long shot but it will be interesting to see what happens.

[wordell1]

Unfortunately,  the issues are very different.  The executive branch has very broad powers when it comes to international affairs and very limited powers when dealing with domestic affairs.

Since the ships are foreign flagged, it will be considered an international issue and the executive branch will likely prevail in the absence of direct legislation by congress.

[JeffB]

50 minutes ago, smokeybandit said:

It may be a week or two after the hearing for any results.

 

48 minutes ago, twangster said:

It's a long shot but it will be interesting to see what happens.

If the judge enjoins enforcement of the CSO (and all that entails), the preliminary injunction takes place immediately (there are varying rules and exceptions but basically immediately). I think it is correct to assume, it will take the cruise lines a while to digest the impact and implement an operational plan. However, if I have this right, the industry has probably been planning on this outcome for a while. Restart delays may be minimal.

The case the FL's and TX State's Attorneys are making is solid. Twangster, I'm sure you've read the filing. I'm not a lawyer and don't think you are either so, we're both speculating. I was closely involved with a case brought by a private party seeking an injunction on the County of Miami Dade imposing certain regulations based on his powers under the state's PHE. The claimant believed the regulations were unlawful and a undue restraint of trade. Much smaller case but, the plaintiff requested and obtained an expedited hearing. The county backed down before the preliminary hearing by pretending to rescind the regulations because COVID circumstances had changed. They hadn't but the Mayor saved face.

I don't think the HHS/CDC is going to back down before the hearing. Their lawyers will argue that the CDC has the power to regulate the cruise industry. They will argue cruises, by their nature, are high-risk environments for airborne and foodborne diseases and there is documented history of COVID super-spreader events on Princess cruise ships among others. Cruise ship staff and passengers travel to different ports and destinations. When they disembark or come back home, they can expose their family, friends, and the general public to Covid-19. Given the danger that cruises could pose, the CDC has clear powers to regulate to ensure the safety of the general public.

It's a decent argument and the Judge may like it. As Wordell1 suggests the government may also argue for dismissal based on this being an international issue. The problem for HHS and the CDC is that the suit also claims irreparable economic damage to FL's and TX's cruise ports and larger economies tied to cruise ship operations. That part of the claim is national, not international. The entire scope and implications of the CSO, therefore, exceeds the statutory and regulatory authority of the CDC. The states are also arguing that the CDC's regulatory authority over maritime operations that might threaten public health applies to single, time limited events. That's not what the CSO is. It is an ongoing, lengthy restraint of trade imposing billions of dollars of economic losses that only Congress has the authority to pass this kind of regulatory legislation.

Based on the foregoing, I think the claim has a better than average chance of having the Judge issue the injunction the claimant states are seeking. The risk is that their are technicalities beyond my understanding that may weigh on this case but, fundamentally, based on the arguments contained in the 5 elements of the claim, this is a strong case. It helps that the Judge, who has already reviewed the filings and arguments of both parties deems the claim worthy of being heard on an expedited basis. 

[0_0]

Basically removed my previous post due to finding this. Looks grim. CDC might just be able to apply whatever ridiculous "sanitary" measures to vessels they desire.

42 U.S.C. § 269

https://casetext.com/statute/united-states-code/title-42-the-public-health-and-welfare/chapter-6a-public-health-service/subchapter-ii-general-powers-and-duties/part-g-quarantine-and-inspection/section-269-bills-of-health

[JeffB]

I don't think anyone, including FL's Attorney General, has questioned the authority of the CDC or HHS (in the person of the Surgeon General) to regulate sanitary conditions on board vessels making port calls in the US. The USCG is the enforcement arm for the myriad maritime rules and regulations that ships calling on US ports have to comply with. Upon arrival in a US port, the captain of the vessel must certify that his ship is in compliance with these rules and it is part of the authorization process that port authorities undertake when approving a vessel's request to make a port call.  As well, the USCG conducts regular sanitation inspections that cruise ships routinely pass. None of this is new and the cruise lines have been in strict compliance with these regulations.

Having said that, FL's claim is, in part, that the CDC does not have the authority to issue year-and-a-half-long nationwide lockdowns of entire industries based on the applicable laws and regulations detailed above. And even if it did, its actions here are arbitrary and capricious and otherwise violate the Administrative Procedure Act (“APA”). FL's claim against HHS and the CDC leans heavily on violations of the Administrative Procedures Act and less on questioning the CDC's authority to regulate sanitary conditions aboard vessels. 

The claim adds the following:

(1) Irreparable (Economic) Harm

(2) Failure to determine if the State of FL has or has not taken adequate steps to insure that tourists traveling from state to state are not spreading disease before they issued the NSO (affecting the state) and subsequently modified by the CSO. IOW, federal action is unlawful when such notice is not given in accordance with the Administrative Procedures Act.

(3) CDC failed to give proper notice to the state of FL before imposition of the NSO and CSO as required by the Administrative Procedures Act.

(4) Unconstitutional Exercise of Legislative Power. IMO, this is the strongest element of the claim and I quote it here:

"72. If the Conditional Sailing Order does not exceed the authority under 42 U.S.C. § 264 and the relevant regulations, then Section 264 constitutes an unconstitutional exercise of lawmaking by the executive branch, affording the CDC the power to determine the rights of millions of citizens, to decide on the survival of countless businesses, and to make a host of sweeping policy decisions absent meaningful accountability."

0-0, I think you were spot on in the post you removed, not withstanding your subsequent removal of it citing 42 U.S.C. The element of the FL law suit I quoted above deals directly with that issue.

[0_0]

JeffB, I agree with all you've said. I would state further that the lack of action on the CDC's part is a dereliction of duty to the citizens of the US. The protocols they just now released should've been released last year. This would have given the operators a chance to meet or exceed those guidelines in a reasonable amount of time or execute before the vaccinations were even developed.

I'm slightly less confident in Florida's case after finding law that directly applies to their oversight on vessels, however I still feel like this moratorium judgement sets a good stage for them to have a shot at getting their preliminary injunction through.

[JeffB]

0_0, this link is somewhere else on these message boards but for your reading pleasure, here's the link to FL's filing in it's entirety. Incidentally, it was filed as an issue with Administrative Procedures that the federal courts have jurisdiction over and review. I don't think it could have been filed as a matter of questioning the CDC's authority to regulate sanitary conditions aboard vessels for the purpose of preventing the spread of disease within the US. The CDC clearly has that authority. 

http://myfloridalegal.com/webfiles.nsf/WF/TDGT-BZVLFJ/$file/Fla+v+HHS+and+CDC+complaint.pdf

[cruisellama]

Texas joins the law suit also.

https://cruiseradio.net/cruise-radio-news-briefs-may-7-2021-video/