You do not have to be a lawyer steeped in constitutional law to understand that Governor DeSantis’ lawsuit filed yesterday on behalf of the State of Florida against the U.S. federal government and the Centers for Disease Control may lack a legal basis.
Legal scholars could cite a litany of law review articles explaining in great detail why a state governor cannot sue the federal government regarding how a federal health agency manages a deadly international epidemic which affects matters of international businesses involving foreign flagged cruise ship operated by foreign incorporated companies.
No Legal Basis for a State to Sue the Federal Government Managing An International Plague
The Miami Herald lightly touched upon the absence of legal basis of the ill-conceived litigation in its article titled DeSantis Sues CDC to Get Cruises restarted. Experts Call It a ‘Political Stunt.’ The Miami Herald wrote:
“I think it’s got negligible viability approaching zero,” said Larry Gostin, professor of global health law at Georgetown University and director of the World Health Organization’s center on global health law. “Under no circumstance could I see a judge striking down a regulation that applies to cruise ships and the safety of its passengers because its passengers are going to be introducing infectious diseases back into the U.S. if they get infected on the ship. The U.S. has a very strong interest and power to stop that.”
Then there’s the issue of standing. While cruise companies may be able to successfully argue they are victims of the federal government’s regulations, the governor is unlikely to be able to make the same argument.
“It’s a political stunt, and it’s not viable,” said Bob Jarvis, a constitutional law professor at Nova Southeastern University. “DeSantis doesn’t care that it’s gong to be laughed out of court. By the time it gets dismissed his base will have moved on.”
I looked into the legal issues briefly but will defer to the legal scholars for the painful legal mumbo jumbo. Constitutional expert and Professor Tara Leigh Grove of William & Mary Law Schools wrote a law review article a few years ago which delved into great depth regarding the issue – “When Can A State Sue the United States.” After forty-eight pages of detailed legal analysis, the legal scholar concluded simply that states do not have a special interest in overseeing the manner in which legal agencies implement federal law.
A State Cannot Oversee How the CDC Implements Federal Health and Safety Regulations
Of course, that is exactly what the lawsuit alleges: that the U.S. Centers for Disease Control and Prevention failed to comply with federal law, namely the Administrative Procedure Act (APA) which governs the process by which federal agencies develop and issue regulations. The lawsuit further criticizes how the CDC applied 42 USC 264 (Regulations to Control Communicable Diseases) and the corresponding Code of Federal Regulations, 42 CFR 70.2 (Measures in the Event of Inadequate Local Control).
The lawsuit makes the extraordinary allegation these federal statutes and regulations do not empower the CDC to “make or enforce regulations that suspend the operations of cruise ships . . . ” Of course, this is an utterly ridiculous assertion. Over the years, the CDC has entered “no sail orders” when hundreds of passengers and crew became ill with norovirus or other gastrointestinal illnesses. Back in 2011, one of the most notable incidents involved the CDC shutting down the Celebrity Mercury (since sold) which was sailing out of Charleston, South Carolina. After three consecutive norovirus outbreaks which sickened literally thousands of guests and crew members, the CDC finally prohibited the cruise ship from sailing and further harming the public.
Centers for Disease Control: “Shut Mercury Cruise Ship Down!”
Obviously, local state and city health inspectors do not have jurisdiction to board and inspect vessels engaged in international sailings. This is exclusively the jurisdiction reserved to federal agencies like the CDC.
Florida Has No Standing to Assert Claims By Foreign Incorporated Cruise Lines Operating Cruise Ships Registered in Foreign Countries Outside of the U.S.
The lawsuit includes allegations regarding the negative effects of the COVID-19 pandemic on the cruise lines. There is no doubt that the deadly coronavirus pandemic substantially affected the cruise industry’s business. But in every lawsuit, the person or entity who brings the lawsuit must have actually suffered the harm. In other words, you can’t sue if your neighbor is injured.
In this case, Florida alleged that a large number of its citizens lost their cruise-related jobs and the foreign flagged cruise lines lost billions of dollars in income. There’s no doubt that this is true, but it’s legally irrelevant to the lawsuit. There is no basis for a state to assert a legal basis for a legal case by referring to the financial losses of corporations which chose to incorporate outside of Florida in places like Panama (Carnival), Liberia, Africa (Royal Caribbean) or Bermuda (NCL) and register their ships in Panama and the Bahamas. Likewise, the losses sustained by the ports in Florida are not Florida’s losses.
The only losses which Florida has possibly incurred are “reemployment assistance benefits” which Florida says are $20,000,000 paid to “6,464 former cruise industry employees.” This figure is largely a “de minimis” figure considering that the CEO’s of Carnival Corporation and NCL alone were paid nearly $50,000,000 while firing or furloughing many thousands of sales agents or minimally paid crew members.
The “Facts” Alleged Read Like a Press Release and Involve One-Sided and Highly Disputed Opinions
The lawsuit seeks an injunction summarily holding that the CDC’s Conditional Sailing Order is unlawful. This is based on “factual” grounds which are largely self-serving opinions from the cruise industry trade organization, Cruise Line International Association (CLIA) and cruise fan blogs. One of the first “facts” asserted, without any referenced source, is “the country is returning to normal. Florida is leading the way and has remained more open than many other large states.” Governor DeSantis has always advocated reopening the economy and has largely supported his fellow Republican ex-president Trump’s disregard of the CDC and attempts to downplay the seriousness of the deadly pandemic. DeSantis has expressed Presidential aspirations and will undoubtedly run on a Trumpesque damn-the-CDC-let’s-open-up-the-economy-at-all-costs agenda
It is clearly in dispute whether the U.S. has or ever will “return to normal” as the lawsuit claims. It is also disputed that people are safely traveling again, as alleged in the lawsuit papers: “they are doing so safely with protective vaccines, sanitation and social distancing.” The fact is that Governor DeSantis has attempted to rally public supports against vaccines and signed an executive order prohibiting corporation from requiring vaccine passports.
Do you understand @GovRonDeSantis policies
* Opens businesses, but no mask mandate
* Bans companies from requiring vacs needed to open safely
* Sues @CDCgov re evidence-based rules to keep cruise passengers safe
* Also bans cruises from requiring vaccines
Is there a ph strategy?
— Lawrence Gostin (@LawrenceGostin) April 9, 2021
Governor DeSantis has exhibited a tendency to make public appearances, at various rallies around the state, where he makes a point of not wearing a mask, shaking hands with other anti-maskers and then rubbing his nose, which has been a spectacle on Twitter. Of course, he reportedly was maskless, along side Representative Gimenez & Commissioner Díaz, at the press conference where he announced his lawsuit against the CDC,
DeSantis has arrived maskless at Superspreader event giving high fives before ending with nose rub-pick pic.twitter.com/g6Qnk3zG6o
— Daniel Uhlfelder (@DWUhlfelderLaw) October 12, 2020
The Lawsuit Cites Cruise Fan Blogs As Part of Its “Factual” Background
One of the first things that a young lawyer learns is that lawsuits, particularly requests for legal preliminary injunctions which essentially invite the court to rule on the facts alleged in the complaint itself, must contain provable facts. Opinions of fans and admirers are not facts.
DeSantis’ lawyers could not help themselves from citing only self-serving opinions of CLIA or cruise fan blogs. The popular cruise fans site, Cruise Hive, mocked the CDC conditional sailing order and also repeated CLIA’s false and misleading conclusions about the “resounding success” of keeping passengers in a safe “bubble” during European and Asian cruises. The truth of the matter is that CLIA, cruise executive and cruise fan blogs have all repeated CLIA’s false data and understated the true number of positive guest and crew COVID-19 cases by over 75%, as we reported.
A “Craven Political Stunt?”
Senator Blumenthal weighed in on Governor DeSantis’ ill-conceived lawsuit today, calling it a “craven political stunt pandering to cruise companies.” He is correct.
Gov. DeSantis suing the CDC is a craven political stunt pandering to cruise companies. He seems to care more about their profits than passengers at risk of COVID-19. No way should the CDC send cruise ships to sea now. https://t.co/qHiIAjSzGh
— Richard Blumenthal (@SenBlumenthal) April 9, 2021
There is a reason why no cruise line official reportedly stood during governor’s press release when he filed suit against the CDC yesterday. No cruise CEO wants to be associated with this stunt when it crashes and burns.
Florida reported 7,939 new COIVD cases yesterday. There have been 560,000 COVID deaths and over 31,000,000 cases in the U.S. over the last year. The trend unfortunately is increasing, notwithstanding the availability of vaccines. Contrast these statistics with the COVID number from Singapore, where one-third of current cruise passengers are sailing from. There is only one reported local new COVID case (reported 2 days ago) and only 26 reported imported cases in Singapore, with just 30 deaths over the last year. The lawsuit refers to the alleged “resounding success” of cruising in Asia, which primarily involves cruising from Singapore.
Any success from cruises from Singapore is not because of cruise line health protocols but due to the fact that there are virtually no COVID cases in that country in the first place.
The fact is Florida is one of just five states which account for 44% of the nation’s new COVID-19 infections, or nearly 197,500 new cases, in the latest available seven-day period. Over the past week, there has been an average of 66,118 COVID cases per day in the U.S., an increase of 13 percent from the average two weeks earlier.
The CDC will continue to be driven by this disturbing data, not the misleading allegations in DeSantis’ amateurish lawsuit.
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Image Credit: WFLA News 8 Tampa