Florida Asks Court to Lift CDC Restrictions on Cruise Industry
By Amy Howe

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Amy L Howe … Until September 2016, Amy served as the editor and reporter for SCOTUSblog, a blog devoted to coverage of the Supreme Court of the United States; she continues to serve as an independent contractor and reporter for SCOTUSblog. Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there. From 2004 until 2011, she co-taught Supreme Court litigation at Stanford Law School; from 2005 until 2013, she co-taught a similar class at Harvard Law School. She has also served as an adjunct professor at American University’s Washington College of Law and Vanderbilt Law School. Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.

WASHINGTON, DC — July 27, 2021 — Less than a month after the Supreme Court refused to disturb a federal moratorium on evictions imposed by the Centers for Disease Control because of the COVID-19 pandemic, the state of Florida on Friday asked the justices to block the COVID-related restrictions that the CDC has outlined for cruise ships to follow before returning to sea. A federal district judge had blocked the CDC from enforcing the restrictions in Florida, but on July 17 the U.S. Court of Appeals for the 11th Circuit put his ruling on hold, prompting the state to seek emergency relief at the Supreme Court. The move came one day after CNN reported that the state’s current seven-day average of new daily COVID-19 cases is the highest in the nation.

Update (Friday, July 23, 9:10 p.m.): Shortly after Florida filed its emergency request at the Supreme Court, the 11th Circuit unexpectedly withdrew its July 17 order and, in a new unsigned order, allowed the district judge’s ruling to take effect. The 11th Circuit’s new order means that the CDC is blocked from enforcing its restrictions in Florida while the litigation proceeds in the 11th Circuit, and it likely renders Florida’s request at the Supreme Court moot.

Update (Monday, July 26, 1:50 p.m.): On Monday afternoon, Florida withdrew its request for emergency relief. The remainder of our original article (published prior to the 11th Circuit’s reversal and Florida’s withdrawal) appears below.

Most cruise ships voluntarily stopped sailing once the seriousness of the pandemic became apparent, and in March 2020 the CDC issued a “no-sail order” that stopped any remaining cruises. That order remained in effect until the end of October, when the CDC issued the “conditional sailing order” at the heart of Florida’s challenge. The order creates a four-phase approach for cruise ships’ safe return to sailing – requiring, for example, simulated cruises to test COVID protocols onboard each ship. Only five of the 65 ships that sail out of Florida have been approved to return to cruising, according to Florida’s filing on Friday.

The cruise industry plays an important role in Florida’s economy. Ten major cruise lines have their headquarters in the state; in 2019, nearly two out of every three people who boarded a cruise in the United States did so in Florida. The state went to court in early April, arguing that with the CDC’s restrictions in place the “cruise industry would not re-open” in time for summer cruising. It argued that the conditional sailing order exceeded the CDC’s authority.

The CDC countered that the federal government “has a long history of acting to combat the spread of communicable disease,” but U.S. District Judge Steven Merryman sided with the state. Stressing that the CDC has never “implemented measures as extensive, disabling, and exclusive” as the conditional sailing order, Merryman blocked the CDC from enforcing the order against Florida cruise ships.

The CDC appealed to the 11th Circuit, which issued a brief order on July 17 that put Merryman’s ruling on hold, allowing the CDC to enforce its restrictions, while litigation continues.

In its 23-page filing on Friday, Florida asked the justices to lift the 11th Circuit’s stay and allow Merryman’s ruling to take effect. The state reiterated that the CDC has only “limited powers to enact traditional quarantine measures.” Federal law does not, Florida stressed, “permit the agency to remake the entire cruise industry.” The state noted that five justices agreed that the CDC went too far with the eviction moratorium, which relied on the same federal law, but Justice Brett Kavanaugh ultimately declined to lift the moratorium because it was set to expire soon anyway. By contrast, the state emphasized, the CDC’s order in this case is slated to last at least until November. Unless it is lifted, “Florida is all but guaranteed to lose another season” of cruising “while the CDC pursues its appeal,” the state told the justices.

Florida’s request went to Justice Clarence Thomas, who handles emergency appeals from the 11th Circuit. Thomas can act on the application on his own or refer it to the full court.

This post is also published on SCOTUSblog.

TribuneFlorida Asks Court to Lift CDC Restrictions on Cruise Industry
By Amy Howe

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