Sunday, June 13, 2021

Will The Courts Restore Rationality?

Red State reports today about the lawsuit of the State of Florida in federal court challenging CDC "guidelines" for cruise ships. One wishes that such lawsuits had been brought, oh, at least a year ago, but better late than never. The judge hearing the case has Florida in CDC in mediation at this point, Steven Douglas Merryday (a senior GHWB appointee) is showing signs that he will demand that CDC show some rational basis for its outrageous "guidelines"--guidelines that are clearly intended to shut down the cruise ship industry in the State of Florida. CDC is demanding that 95% of cruise ship passengers be vaxxed. According to the Tampa Bay Times,

Does the U.S. Centers for Disease Control and Prevention have the authority to require cruise companies in Florida to take specific measures to prevent the spread of disease? And are its current mandates an unfair burden on the industry?

Those questions were at the heart of a three-and-a-half hour hearing in federal court Thursday in Tampa over the state of Florida’s request that the court invalidate the federal government’s rules for cruises while a lawsuit against the agency proceeds.

It was the second hearing on the request. As with the initial hearing, held on May 12, U.S. Middle District of Florida Judge Steven D. Merryday issued no immediate ruling but said he would have a decision “soon.”

There is growing sentiment on the SCOTUS to rein in the administrative state, which courts have long deferred to as representing "expert" opinion. In addition to long sitting justices, all three Trump appointees are known as critics of what has often amounted to blank check deference. That view seems to come through in the TBT account of the hearing, and of Merryday's questioning of the CDC. Notably, Merryday confronted the CDC with the stats from the Diamond Princess cruise ship.

The question of Chevron deference, the deference accorded to the interpretations of government agencies like the CDC by federal courts, is a complicated one. Here's the Wikipedia first paragraph thumbnail sketch:

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. The decision articulated a doctrine now known as "Chevron deference". The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: "whether the agency's answer is based on a permissible construction [emphasis added] of the statute", so long as Congress has not spoken directly to the precise issue at question.

Note that the deference applies when Congress has passed a statute that the agency in question (here the CDC) is interpreting, as a presumed expert in the subject matter. This is why the CDC lawyer references the "broad authority" that it has "from Congress". But the judge shows a will to push for a rational basis for the guidelines independent of CDC's claims of "broad authority." The CDC lawyer slips up, in my opinion, by claiming an essentially unlimited authority--an authority that courts are unwilling to grant even to Congress. Additionally, courts are unlikely to accord a high degree of deference when the guidelines were not arrived at as a result of public hearings. Conservative legal groups have long been urging federal courts to review the Chevron doctrine of deference (it has been narrowed over time) and even to throw it out entirely--subjecting agency rules to "strict" scrutiny for a rational basis. That momentum, with the addition of Trump's three appointees, is at the highest point yet.

Here is the TBT account of the core of the hearing, but there's more at the link:

The underlying lawsuit, filed against the Centers for Disease Control by Gov. Ron DeSantis in April, says the agency’s “conditional sail order” is unfairly targeting the cruise industry with overly burdensome safety rules, and preventing Florida from collecting important tax revenue. The current request calls for immediate action until the lawsuit can be heard.

In reviewing the issues Thursday, Merryday asked, “What is the acceptable risk for traveling on a cruise vessel and who decides to take that risk or if it’s too much?” He noted that a passenger who contracts the coronavirus aboard a cruise ship has made “a private decision with a public consequence.”

He also grilled the federal government’s lawyer about the source of their powers to regulate cruises and repeatedly asked for the agency to define how bad the coronavirus spread needs to be onboard a ship before the agency can intervene.


But Amy Powell, who represented the Centers for Disease Control, said cruises are much more dangerous than other settings.

“Several thousand people are in close quarters for days and weeks,” she said. “We have data showing the transmission rate aboard cruise ships is five times higher than elsewhere.”

The judge’s questions hinted at skepticism. The federal government has used past cruise outbreaks, such as on the Diamond Princess, to help craft the rules and understand how the virus spreads on board. Of the thousands of passengers on that ship, at least nine died, according to previous agency statements, though Powell said the true number was higher.

“On a vessel without precautions designed for COVID, without knowledge of COVID and without therapeutics ... two-tenths of one percent of passengers died?” Merryday asked.

He also said the Centers for Disease Control’s own research suggested masks’ effect on tamping down the spread was “barely statistically significant” in one community where the agency had done a study.

“Where does this mask efficacy theory come from?” Merryday said. “We’ve had masking and social distancing for a long time and we had a pandemic in the middle of it.”

Powell responded that neither masks nor social distancing are cure-alls, but that they reduced the number of people who died.

“What you can do is make the best scientific decision you can with the evidence available. That’s the CDC’s job,” she said. “We don’t expect the risk to be zero, there will be risk on every ship. ... But we’re still in the midst of a still-deadly pandemic.”

When pressed on what level of transmission would require agency action, Powell said the agency has broad authority from Congress to prevent the interstate and international transmission of disease, and there’s a need for “enforceable public health measures.” Legally, the agency has the power to try to reduce transmission to zero, even if that may not be practical in the coronavirus’ immediate future, she said.

Percival, for the state of Florida, pounced on that statement.

If that’s true, “it’s unclear what they cannot do,” he said. “They can bar your doors. ... That is an astronomical power.”

Percival, representing Florida, makes a hugely telling point, in my view. CDC unwisely asserted an essentially unlimited power that any court should be skeptical of. Hopefully this case--which, with all the economic and social implications involved--will serve as the vehicle to restoring rational control of the federal administrative state.


  1. It's nice to see a judge understanding the difference between statistical talking points (aka political) and actual data!

    As well as the limits of implied (assumed) power of authority. That's a subject that should be touched on far more often than it is.

  2. Courts should not have accorded more than a minor degree of deference, when the guidelines were not arrived at as a result of public hearings, w/ withering scrutiny about the *costs* to the public of the proposed regs.
    Just as legislatures should've aggressively challenged the executive in court, once the 30-or-so day "emergency" window has passed.

  3. Rather o/t, but too major to not post somewhere:
    You know Who today, on NYT on how
    "Weissmann and Mueller used the Special Counsel and FBI, to conduct surveillance on the White House legal counsel, and his family....
    Perhaps this article is written now, because the *Durham* investigation is going to reveal how Mueller and Weissmann conducted investigative surveillance over the Trump White House…"

    I'm struck that You know Who, pessimist that he usually is, expects anything at all from Durham.

    1. Sundance is misunderstanding things. He uses the term "surveillance," which implies obtaining real time content. But this was a GJ subpoena for records--call records, meta data--not the content of the calls. It's interesting, but at this point it's a, so what? There will be NO criminal charges arising from subpoenaing phone records. If they had obtained a FISA warrant there might be a question about the representations in affidavit for the warrant, but that's not gonna be an issue in re a subpoena.

    2. I hear you.
      How often can GJs issue subpoenas kept secret from the target?
      What if Apple had chosen to challenge the legality of this move?

    3. shipwreckedcrew breaks down the subpoena as to what it really means, and calls it fake news

      the subpoenas were only to get subscriber information, which is a nothingburger


    4. Ok gotta ask, why "You Know Who"? lol

      I've followed Sundance and been part of TCH for years and years and I have always thought very highly of his work.

      The thing about reporting on Government, especially Government screw up's is you always stuck in a 20/80 margin of what's known and speculation, piecing that together is always going to have it's difficulty.

      Agree or disagree I've always taken his work in that light and I think he's been pretty forthcoming / cautious about his fact vs speculating in MOST cases.

      Lately however I will say he's started channeling the Hoft brothers less than I like. I think it unfortunately has to do with site traffic and paying the bills.