CDC Seeks Emergency Stay In Appeals Court After Trial Judge Denied Request to Keep Cruise Restrictions
Trial Judge: “In other words, CDC can show no factor that outweighs the need to conclude an unwarranted and unprecedented exercise of governmental power.”
The Centers for Disease Control and Prevention (CDC) does not want to let go of its control of the cruise industry.
The CDC thinks the cruise industry cannot control the spread of COVID without its restrictions. Florida, Florida’s health experts, and the cruise industry have absolutely no idea how to prevent transmission of COVID-19, right? Only the CDC can do that!
Well, U.S. District Judge Steven Merryday is not falling for the “government knows best” argument.
The fight between Florida and the CDC began in April. Florida Gov. Ron DeSanti sued the CDC in the U.S. District Court for the Middle District of Florida after the CDC issued a “no sail” order.
In June, Merryday granted DeSantis a preliminary injunction.
On Wednesday, Merryday made it official by denying the CDC’s request to keep its COVID restrictions on cruises out of Florida.:
With some marginal elaboration and a new affidavit not otherwise in the record, CDC in the present motion rehearses the arguments advanced unsuccessfully in opposition to Florida’s motion for a preliminary injunction. CDC’s arguments remain unpersuasive. CDC remains dismissive of the requirements of the Administrative Procedure Act, remains dismissive of the manifest disjunction between the statute granting CDC authority and the authority CDC purports to exercise over the cruise industry, remains dismissive of state and local health regulation and dismissive of the cruise industry’s self-regulation (that resulted in a voluntary cessation of cruise ship operation when COVID-19 appeared in early 2020), remains dismissive of successful cruise ship operation elsewhere in the world, and surprisingly remains studiedly dismissive of the opportunity, afforded in the preliminary injunction, for CDC to propose an alternative injunction that preserves any part of CDC’s cruise ship regulations within CDC’s statutory grant of authority and justified by reliable data (that is, data that CDC will disclose, unlike the undisclosed CDC data that speculates about the effect of COVID-19 aboard a cruise ship and on which CDC relies to impose the disputed regulatory regime).
Merryday slammed the CDC for not trusting Florida’s health experts or the cruise lines. But Merryday has a major problem with government overreach (emphasis mine):
In this instance, CDC’s argument fails for the reasons elaborated in the preliminary injunction to show a likelihood of success on appeal, and CDC fails to demonstrate that denial of the stay will injure materially CDC or the United States, any third party, or the public. Although CDC invariably garnishes the argument with dire prospects of “transmission” of COVID-19 aboard a cruise vessel, these dark allusions dismiss state and local health authorities, the industry’s self-regulation, and the thorough and costly preparations and accommodations by all concerned to avoid “transmission” and to confine and control the “transmission,” if one occurs. In other words, CDC can show no factor that outweighs the need to conclude an unwarranted and unprecedented exercise of governmental power. More to the point, this action is not about what health precautions against COVID-19 are necessary or helpful aboard a cruise ship; this action is about the use and misuse of governmental power.
The cruise industry is a major driver of Florida’s economy. The CDC shut down cruises in March 2020. Officials then provided the cruise companies “a strict phased approach to reopening.”
DeSantis said his “lawsuit is necessary to protect Floridians from the federal government’s overreach and resulting economic harm to our state.”
But in asking the appeals court to issue the stay, U.S. Department of Justice attorneys representing the CDC wrote that Merryday’s preliminary injunction “rests on errors of law and is a clear abuse of the district court’s discretion.” It also argued that the injunction will “exacerbate the spread of COVID-19.”
“The district court had no basis to substitute its view (or Florida’s view) that the CDC’s protocols can safely be lifted for the contrary determination made by the expert public health agency in consultation with the cruise ship industry and squarely within its traditional authority,” the request to the appeals court said. “These protocols appropriately balance public health concerns with the shared desire to resume passenger cruises — as is amply demonstrated by the fact that the cruise lines (which have not appeared in this litigation) are well underway in implementing the conditional sailing order and already are, or soon will be, resuming passenger cruises.”
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