Friday, Judge Merryday of the federal court in Florida struck down the CDC’s Covid-based rules about cruise ships. The judge issued an injunction against the CDC rules, which is a blow to the CDC’s efforts not just about cruise ships but to other public health rules aimed at Covid. This victory for Florida Governor Ron DeSantis may reverberate not just in Florida, but in all the states where the state authorities oppose what the CDC has tried to do nationally.
The CDC’s rule, called the “conditional sailing order,” says cruise operators can sail quickly if 95 percent of crew and passengers are vaccinated. If not, the cruise operators can still sail, but must take volunteers on ‘test’ cruises to show they can mitigate the risks of covid. It may not be exactly what cruise operators and Governor DeSantis want. But it responds to the experience early in the covid pandemic when there were high-profile cruise ship outbreaks, with ports closing to ships with infected people and sick passengers dying en route to land.
The contents of Judge Merryday’s opinion, when one reads its 124 pages through, are worrisome if not downright scary. He admits that “the history of federal involvement in quarantine regulation confirms that the power peaked . . . amid the threat of yellow fever, cholera, malaria, and the like.” Here is his analogy.
“One is left to wonder . . . 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 . . . 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.” (Quoted from Merryday opinion at 73.) In other words, he implies that the CDC should no more try to impose Covid safety measures on cruise ships, than to “generally shut down sexual intercourse in the United States.”
Apart from this, the opinion contains some legal dynamite. First, Judge Merryday connects his opinion with the ongoing litigation over the CDC’s rule against evictions during the pandemic. Many landlords and the like have fought in court to be able to evict tenants, against the more generally held view that the CDC can act to prevent mass evictions that would spread Covid. Even President Trump did not oppose the CDC ban against evictions. Until now, in any event, the court dispute about eviction was over one issue – a huge one, an absolutely critical one, but, just that one issue.
Now Judge Merryday would spread the few rulings about the CDC eviction ban to a broad range of CDC actions. His opinion is not written narrowly, but could be invoked extensively against the CDC. There is a bit of a cultural war here. Most of the country favors CDC rules for controlling the outbreak, even by strong measures. It is no secret that Governor DeSantis opposed some of those measures, such as on masks, as heavy-handed and did not want them to apply in Florida. But until now, he could not get judicial support. Now he has — in federal court in Florida.
Second, what is particularly alarming, is that Judge Merryday does not stop with knocking down the CDC as to statutory and administrative law. He goes further, and opines that the CDC’s charter would be unconstitutional if allowed to go forward. In constitutional law, there is a doctrine that has not been upheld by the Supreme Court since 1935, called the “non-delegation doctrine.” It says, in brief, that Congress cannot enact broadly, because that “delegates” too much to administrators.
Occasionally hints are dropped, not actual holdings, that the doctrine will be revived from its 86 year slumber, and used to wipe out a broad range of Congressional actions. There is no mystery that it would be an enormous triumph for the right wing, and a dark day for Congress, when judges begin to wield this doctrine in current cases like the CDC cruise ship case.
Judge Merryday reaches his climax that the CDC charter would be unconstitutional if we asked “whether. . . [a law] can bestow on [the CDC] 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. . . halt anyone’s entering or exiting any or all of the states . . . or otherwise alter the course, history, prosperity, and health of the nation and the balance of governmental authority . . . throughout the nation.” (Opinion at 84.)
This judicial opinion should be appealed and reversed.