DeSantis says he’ll appeal ruling keeping CDC cruise authority in place

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Florida Gov. Ron DeSantis said Monday that the state would go to the U.S. Supreme Court if necessary to overturn Saturday night's appellate panel ruling allowing the Centers for Disease Control and Prevention's authority over cruise lines to remain in place as the state's challenge moves forward.

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By RON HURTIBISE

SOUTH FLORIDA SUN SENTINEL |

JUL 19, 2021 AT 4:03 PM

 

 

The Celebrity Edge became the first cruise ship to resume cruises from the United States with paying passengers when it left Port Everglades on June 26. (Marta Lavandier/AP)

 

Gov. Ron DeSantis promised Monday to go as high as the U.S. Supreme Court to ensure that a federal health agency has no authority over a cruise industry that is trying to resume voyages after an extended COVID-19 shutdown.

DeSantis said the state would seek to reverse an order issued late Saturday night by the U.S. Court of Appeals for the 11th Circuit in Atlanta that prevented the lifting of restrictions on the cruise industry imposed in spring 2020 by the Centers for Disease Control and Prevention.

The state of Florida, at DeSantis’ direction, sued the CDC in April, saying the agency’s cruise ban was causing harm to Florida’s economy and was illegal because Congress never granted the CDC authority to impose health and safety rules on cruise ships operating from U.S. ports.

RELATED: Court sides with CDC on COVID-19 cruise ship regulations »

In June, U.S. District Judge Steven Merryday granted the state a preliminary injunction that would have stripped the CDC’s authority. The CDC appealed the injunction, which was to take effect on July 18.

Late Saturday night, a three-judge appellate court panel granted the CDC’s request to delay the injunction as the case moves forward. That 2-1 decision was issued just moments before the injunction was to take effect.

DeSantis on Monday said he was confident that the full 12-member appellate court or even the U.S. Supreme Court would side with the state and reimpose the injunction sidelining the CDC.

The governor will likely have to move quickly to declare victory, either by getting Saturday’s order reversed or by winning the overall lawsuit. The CDC’s rules governing what cruise ships must do to resume operations expire on Oct. 31. Assuming the CDC has no reason to extend them, whatever happens in the courts largely won’t matter to the industry as of Nov. 1.

Meanwhile, several cruise lines have resumed operations from Florida while trying to both adhere to the CDC’s resumption framework and avoid violating DeSantis’ state law that prohibits businesses from requiring customers to show proof of vaccination.

Carnival Cruise Line and Royal Caribbean Cruise Line, which restarted voyages from Florida this month, are encouraging passengers to show proof that they have been vaccinated but, in adhering to the state law, are not requiring vaccinations. Instead, the cruise lines are requiring non-vaccinated guests to purchase travel insurance and follow mask wearing and social distancing rules not required for vaccinated guests.

RELATED: Florida wins first round in cruise fight, but victory will be delayed »

Norwegian Cruise Line, by contrast, is refusing to back down from its requirement for fully vaccinated ships. The cruise line filed its own lawsuit last week challenging Florida’s ban on so-called vaccine passports and filed a brief supporting the CDC’s appeal of the injunction.

Saturday’s ruling does not affect the cruise line’s challenge of DeSantis’ vaccine passport ban. Nor does it affect the company’s plan to wait until November to resume sailing from Florida, a Norwegian spokesperson said Monday.

Whatever happens in DeSantis’ suit against the CDC going forward will mean little to the industry now that the major cruise lines have committed to following the agency’s rules, said Dawn Meyers, partner with the government and regulatory team of Miami-based firm Berger Singerman.

“It seems most cruise lines have successfully crafted plans to comply both with the CDC order and the governor’s mandates, except of course for Norwegian,” Meyers said. “To me, that is the more immediately interesting lawsuit. The governor’s lawsuit is somewhat of a nonissue given the tightrope path the cruise lines have created and are walking.”

Miami-based maritime attorney Michael Winkleman said he doubted any of the cruise lines would have defied the CDC’s orders if Merryday’s injunction would have taken effect earlier. “It’s clear to me that the cruise lines have worked hard with the CDC in an effort to resume cruises safely,” he said. “As such, I see no reason why they would suddenly change gears and ignore the CDC’s guidelines.

Robert Jarvis, a law professor at Nova Southeastern University whose areas of interest include maritime law, called Saturday’s ruling a signal that the CDC will ultimately prevail in the lawsuit. “This is an important win for the CDC, not so much for the current pandemic but for future pandemics because it reaffirms the CDC’s authority to take bold action when the public’s health is threatened.”

In discussing the lawsuit while taking questions from reporters, DeSantis acknowledged that the state’s lawsuit was not solely about the cruise industry’s viability, but also a broader political challenge to federal agencies’ authority to shut down businesses without legislation specifically granting that power.

RELATED: Norwegian threatens to defy DeSantis with fully vaccinated cruises »

DeSantis is widely assumed to be considering running for the Republican presidential nomination in 2024.

“Can you just have one agency in the government, without Congress ever passing a law, just basically shutting down an industry?” DeSantis said. “Maybe you don’t care about the cruise industry. Next time it might be your industry. Next time it may affect people that you know, or people that depend on this for their livelihood. So I think it raises a lot of important implications.”

In voicing confidence that the Supreme Court would rule his way, DeSantis asserted that “most courts at this point have had their limit with the CDC issuing these dictates without a full statutory basis.” As an example, he pointed to a 5-4 ruling in late June that left the CDC’s nationwide eviction moratorium in place. Justice Brett Kavanaugh said he agreed with the four dissenters but voted to uphold the moratorium to allow more tenants to secure federal rental assistance funds before it expires in July.

“Five justices effectively said that the moratorium on evictions exceeded the CDC’s authority and I think you’d end up seeing this here,” DeSantis said.

RELATED: Cruise lines prepare to sail, but clash with DeSantis looms »

The governor also compared the CDC’s coronavirus restrictions regarding commercial flights and cruises to what he described as a lax policy of letting illegal immigrants cross the southern U.S. border with no testing.

“If you just want to hopscotch across that border, they don’t care about COVID,” he said. “They’re letting you straight in. They’re throwing you on a bus. And they’re sending you all over the fruited plain in this country. So, I don’t understand how you square that.”

The Department of Homeland Security did not immediately respond to a request for comment about DeSantis’ comments on Monday.

Record numbers of migrants have been caught trying to cross the nation’s southern borders since President Biden took office in January. The New York Times reported Friday that just 14% of migrant families arriving at the southern border were turned away under a pandemic-era order created by the Trump administration, Title 42, authorizing removals of individuals who had recently been in a country where communicable diseases are present.

President Biden is facing pressure from Democrats to abolish Title 42 and calls from Republicans to continue enforcing it.