Florida Gov. Ron DeSantisRon DeSantisDemocrat Nikki Fried teases possible challenge to DeSantis Controversial voting laws add to Democrats’ midterm obstacles Overnight Health Care: FDA authorizes Pfizer vaccine for adolescents | Biden administration reverses limits on LGBTQ health protections MORE has manipulated federalism principles in a series of actions designed to aid the Florida cruise ship industry that are less about consistent principles and more about grabbing a headline. His actions may wind up hurting the very same industry, but they also illustrate why Congress needs to examine the proper allocations of state and federal power in a public health emergency.
In October, while former President TrumpDonald TrumpWarren says Republican party ‘eating itself and it is discovering that the meal is poisonous’ More than 75 Asian, LGBTQ groups oppose anti-Asian crime bill McConnell says he’s ‘great admirer’ of Liz Cheney but mum on her removal MORE was still in the White House, the Centers for Disease Control and Prevention (CDC) issued a “conditional sailing order” for the cruise industry that imposed certain restrictions — laboratory testing of crews, simulated cruises, and a certification process — with the goal of returning to full operations in the fall of 2021. On April 2, the Biden administration’s CDC revised and extended the rules. Two weeks ago, Florida Attorney General Ashley Moody, in consultation with DeSantis, filed a lawsuit in federal district court in Tampa, challenging the extension.
At the same time that he fights federally imposed public health measures, DeSantis has contested the ability of the cruise industry to safeguard crews and passengers by requiring proof of vaccination. He has been abetted by the Republican-dominated state legislature that, on April 29, passed a wide-ranging bill that would make permanent a ban on COVID-19 vaccine “passports,” while also handing the governor power to override local orders during health crises.
The pandemic’s impact on the cruise industry in Florida resulted in a loss of $3.2 billion to the state’s economy through August 2020, and the loss of nearly 50,000 jobs. Rather than taking action to show he is serious about making it safe to board cruises out of the Port of Miami and other South Florida ports, DeSantis’s lawsuit argues that CDC rules damage the South Florida economy to the point of interfering with the state’s sovereignty under the federal system, and that the pandemic is, in any event, waning (a claim that relies on an optimistic reading of data.)
As my Georgetown Law School colleague, public health law expert Lawrence Gostin, has predicted, the chance that the governor will prevail in court is almost zero. While there is a degree of interference with core economic functions that is protected by the Tenth Amendment to the U.S. Constitution, interference with jobs in one private industry in Florida doesn’t come close to hitting it. The lawsuit seems to be an effort mostly to embarrass the Biden administration’s CDC.
DeSantis went even further when he issued an executive order based on the expanded emergency authorities in the new Florida bill, prohibiting the carriers themselves from making a business judgment about safety on their vessels. The order extends the ban on requiring proof of vaccination contained in the new law to any cruise ship docking in a Florida port.
One cruise ship line, Norwegian Cruise Lines, has just called the governor’s bluff. It has threatened to withdraw from the Florida market completely, contending it is unsafe and imprudent to sail without a vaccination requirement. Norwegian says it will transfer its operations to a U.S. state that is willing to abide by public health best practices.
Norwegian Cruise Lines apparently recognizes that Florida’s rules would require its crews to take life-threatening risks, and potentially could expose the company to legal liability from lawsuits brought by passengers in the event of onboard COVID-19 transmission.
The actions by DeSantis, state legislators and the Florida attorney general illustrate a disregard for a return to normalcy for an industry that took a particular beating in the early days of the pandemic, when COVID-19 infections on the Diamond Princess became one of the first global health challenges posed by the virus. It also shows a poor understanding of who makes the rules — federal or state government — when it comes to protecting U.S. citizens from the introduction of contagious diseases through U.S. ports.
The power of federal authorities to regulate travel in international waters dates to the founding of the republic, and indeed the origins of public health. States enforced quarantines on arriving vessels from the earliest days of the colonies, and federal laws governing quarantine of vessels date to 1796. Federal power to prevent the introduction and spread of contagious diseases to the country through travel by sea is undisputed.
This means that, as they apply to sea and air travel, both the vaccination passport ban and rule against mask-wearing are effectively preempted by federal rules that DeSantis can’t countermand. But the problems are even more fundamental. The new Florida law creates a one-way ratchet on public health emergency power for the state’s governor. He can loosen restrictions, but the ability to tighten them is subject to legislative oversight. The implications for the pandemic’s remaining months — and even more for a future epidemic — are worrisome, particularly if future legislatures and governors are from different parties and political considerations dominate the debate on what measures are appropriate to combat illness.
We now know a lot about COVID-19 and its transmission. But what if the next threat is mosquito-borne, or easily aerosolized or long-lived on surfaces? One reason governors enjoy substantial emergency powers in public health emergencies is to allow nimble and flexible responses tailored to each emergency and informed by the best science as it evolves. The DeSantis approach to restarting the cruise industry in Florida shows the toxic mix that results from political ambition coupled with disregard for science and for the overarching role of the federal government when it comes to matters affecting U.S. sea and air borders.
As part of its review of COVID-19 response, Congress will need to determine if it is wise to continue to allow the allocation of authority in public health emergencies between the states and federal agencies to be murky. It may be time to explicitly preempt state power to allow a unified all-of-government response to the next viral threat.
Meryl J. Chertoff is the executive director of the Georgetown Project on State and Local Government Policy and Law (SALPAL) and an adjunct professor of law at Georgetown Law.