The Eleventh Circuit should not let this ship sail.
The Eleventh Circuit should not let this ship sail.
O n Sunday, Judge Kathleen Williams of the U.S. District Court for the Southern District of Florida (the federal court based in Miami) ruled in favor of Norwegian Cruise Lines, striking down the anti-vaccine-passport statute passed by the Florida legislature and supported by Governor Ron DeSantis. Judge Williams, an Obama appointee, issued an injunction preventing Florida from enforcing against the cruise line its law prohibiting businesses from requiring proof of vaccination in order to travel. While Florida’s law presents serious federalism issues, Judge Williams advances a bizarre and revolutionary First Amendment theory with vast implications for all manner of economic regulation, and her arguments under the Commerce Clause are decidedly unpersuasive.
Freedom versus Freedom
DeSantis, while a vocal proponent of the COVID vaccines, has argued that adults are free to make their own choices and take the consequences, so he will not mandate vaccinations. More controversially, he has also taken the position that private businesses should not be able to demand that customers prove they are vaccinated. Much as with debates over the collision between the rights of social-media users and the rights of private social-media companies, this puts DeSantis on the “new Right’s” side of arguments holding that government power should be used to protect individuals from the power of private business. The opposing free-market argument is that companies, as well as people, are free to make choices and that customers who don’t like it can go elsewhere so long as the market is not controlled by an illegal or government-backed monopoly.
The Florida law in question bars businesses in Florida from requiring proof of vaccination in order to serve customers. Cruise lines are treated the same as most other businesses. It does not bar businesses from imposing vaccine requirements on employees, and it does not bar businesses from asking about vaccination status, so long as they do not require documentary proof. Under the law, Norwegian Cruise Lines could cancel a cruise if too many unvaccinated people signed up; it just could not single them out. It could also, as some cruise lines have done, require more extensive testing and other restrictions for passengers who say they are unvaccinated.
Even setting aside the broader debate, my own view on this specific issue is that DeSantis has gone too far in imposing the vaccine-passport ban on cruise ships that operate in interstate and international waters, for two reasons. One, as a matter of federalism, the federal government unquestionably has the superior power over ships traveling the high seas. The usual presumption that a state can regulate things inside its own borders is at its weakest when dealing with a ship heading immediately into international waters, as cruise ships generally do.
Two, as a matter of practicality, cruise lines have a particularly urgent interest in being able to regulate the health of passengers who may be carrying infectious diseases. Cruise passengers, unlike hotel guests or patrons of an amusement park, are cooped up together for weeks on end, and it is much costlier and less practical to turn around a ship to disgorge infected passengers once under way. Cruise ships also tend to cater to older passengers and must deal with the unique fear that their customer base may have of shipboard outbreaks. There were two such outbreaks early in the COVID pandemic, which led to the entire industry’s being shut down for over a year. Judge Williams cited one May 2021 opinion poll showing that 80 percent of cruise passengers would prefer to sail with a vaccine requirement.
Of course, practical criticisms of Florida’s bill do not make it unconstitutional. General principles of federalism must be examined more closely when the issue is whether a state’s law is not merely unwise but invalid. Judge Williams enjoined the Florida law on two grounds: that it violated the free-speech rights of Norwegian Cruise Lines and exceeded Florida’s power to regulate interstate commerce. The first conclusion breaks radical new ground in free-speech law. The second, while perhaps a better ground for banning states from regulating sea travel, rests on dubious value judgments.
Freedom of Speech
Judge Williams’s First Amendment theory is that Florida’s law is “a content-based restriction” of speech because a cruise line can demand proof of a negative COVID test or other medical or travel documentation; it just cannot require proof of vaccination. This decision pushed First Amendment law into uncharted waters.
Judge Williams applies a bizarre and unprecedented definition of “speech.” The statute does not impose any rules whatsoever on the speech of passengers, or on the affirmative speech of the cruise lines; it restricts the cruise lines only from imposing certain conditions on doing business with people. To the extent that the law limits what questions they can ask, that is clearly incidental to the ban on conditioning travel on providing papers.
Judge Williams does not really even try to pretend that cruise lines have any sort of expressive or religious interest at stake, as would be the case if they were, say, trying to keep their premises kosher. She argues that this is speech and not economic conduct because the cruise line has “non-economic justifications for requiring the documentation, including to prevent a COVID-19 outbreak aboard its ships and the communities where it travels.” Noticeably, this “non-economic justification” is also an economic interest when Judge Williams turns to her discussion of burdens on interstate commerce.
Judge Williams relies heavily on the Supreme Court’s decision in Sorrell v. IMS Health Inc. (2011), and the Eleventh Circuit’s decision in Dana’s Railroad Supply v. Attorney General of Fla. (2015). Sorrell, however, clearly involved a restriction on speech by the business being regulated; Vermont banned the sale or disclosure of pharmacy records that reveal the prescribing practices of individual doctors. Dana’s Railroad Supply struck down a Florida law that banned surcharges for credit-card transactions while permitting discounts for paying cash. The whole point of the case was that surcharges for one form of payment and discounts for the other were the exact same conduct, and the only thing being regulated was what the business could say to its customers about how its prices worked.
Think about how broadly this ruling would sweep if applied to federal and state laws. For example, Judge Williams noted that “businesses routinely require customers to provide personal identifying information, such as driver’s licenses, social security number, financial reports, and medical information to procure services, procedures, and access to facilities.” Is every law regulating or restricting such requirements now a free-speech issue? Insurance companies and credit-rating agencies are subjected to all sorts of rules about information they can collect and what conditions they can impose on customers. Various states and cities now ban employers from asking about prior salary; 31 states have “ban the box” laws that bar asking about prior criminal convictions. Do such bans violate the employers’ free-speech rights? What about anti-discrimination laws that ban inquiry into sexuality, religion, or political affiliation? What about the EEOC’s list of Americans with Disabilities Act prohibitions: “An employer may not ask a job applicant, for example, if he or she has a disability (or about the nature of an obvious disability). An employer also may not ask a job applicant to answer medical questions or take a medical exam before making a job offer.”
The Commerce Power
Under normal circumstances, the federalism question is fairly straightforward. States have the power to issue health regulations, such as quarantines of people and inspection of goods, on interstate and international commerce within their ports and borders unless the federal government has taken over the job. (Article I of the Constitution even allows a state to impose duties on commerce if “absolutely necessary for executing its inspection Laws.”) The Supreme Court, as far back as Chief Justice John Marshall’s opinion in Gibbons v. Ogden (1824), has noted that state quarantine and inspection laws are constitutional even when they have effects downstream on interstate commerce. That was not the central issue in Gibbons — in which the Court ruled that federal power over navigation could preempt state law regarding steamboats — but Marshall’s view of state quarantine laws has survived even the massive expansion of the federal commerce power.
The courts have, however, also long held that the federal government can displace state quarantine and inspection powers. In Oregon-Washington Railroad & Navigation Co. v. Washington (1926), for example, Chief Justice William Howard Taft wrote that a federal regulatory permission, even by inaction, prevented the state of Washington from barring the importation of plants potentially infected with alfalfa weevils:
In the absence of any action taken by Congress on the subject matter, it is well settled that a State in the exercise of its police power may establish quarantines against human beings or animals or plants, the coming in of which may expose the inhabitants or the stock or the trees, plants or growing crops to disease, injury or destruction thereby, and this in spite of the fact that such quarantines necessarily affect interstate commerce. . . .
[In light of] the existing legislation of Congress as to quarantine of diseased trees and plants in interstate commerce, the statute of Washington on the subject can not be given application. . . . The obligation to act without respect to the States is put directly upon the Secretary of Agriculture whenever quarantine, in his judgment, is necessary. When he does not act, it must be presumed that it is not necessary. With the federal law in force, state action is illegal and unwarranted. [Emphasis added]
Moreover, the courts have traditionally seen the significant federal presence in rules for seagoing vessels as counting in favor of preempting state authority. In United States v. Locke (2000), for example, Washington lost again in an effort to impose detailed safety regulations on oil tanker crews; as the Court observed:
The state laws now in question bear upon national and international maritime commerce, and in this area there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers. Rather, we must ask whether the local laws in question are consistent with the federal statutory structure, which has as one of its objectives a uniformity of regulation for maritime commerce.
The current situation is more convoluted. DeSantis is not trying to keep infected people out of Florida, but to protect the rights of Floridians to travel without having to prove that they took a vaccine.
The status of federal regulation here is itself mired in litigation. The Centers for Disease Control and Prevention previously barred the cruise ships from sailing, under the same federal statutory authority used to justify the eviction moratorium, and then authorized them to sail if they could show that 98 percent of crew and 95 percent of passengers were vaccinated and a variety of other safeguards were observed. Florida filed suit to stop that “Conditional Sailing Order,” and a different Florida federal judge enjoined it in mid-June, finding that the CDC’s detailed set of rules for sailing exceeded its statutory authority and “amounts to an unprecedented detention of an entire fleet of recreational cruising vessels.” The Eleventh Circuit, after briefly staying that injunction, ultimately upheld it without an opinion saying why. As Judge Williams noted, the CDC’s orders “now appear to be non-binding guidelines for vessels departing from and arriving to Florida ports.” Judge Williams did not rule on whether the CDC’s powers and rulings preempted the Florida law here, which would get into the question of exactly what the CDC’s proper authority over cruise ships is.
She relied instead on the Dormant Commerce Clause, i.e., the notion that Florida’s rule was displaced by federal commerce power even if the federal government did nothing in the area. That puts her on more ambiguous ground. Under the governing case law, there are three structural ways in which a state law can violate the Dormant Commerce Clause: if it (1) discriminates against out-of-state business to favor in-state business; (2) directly regulates some instrumentality of interstate commerce; or (3) operates extraterritorially to regulate out-of-state conduct. (The third of these doctrines remains somewhat controversial.)
Judge Williams, however, did not find that Florida’s law violated any of these structural aspects of the Commerce Clause. She instead relied on an even more enduringly controversial aspect of Dormant Commerce Clause law: the “undue burden” standard of Pike v. Bruce Church (1970), which allows courts to apply a “balancing test” to decide whether the burdens of a state law on interstate commerce exceed the benefits to the state. If the Pike test sounds like an open-ended invitation for courts to substitute their own policy judgment of benefits and burdens for those of legislators, it is. That is exactly why it has drawn so much criticism from conservative legal scholars. It is also what makes it so attractive to judges straining, as Judge Williams was here, to throw out a state policy they dislike.
Thus, Judge Williams does not rest her Commerce Clause ruling on the broad federal power over maritime commerce, but rather on her personal view that Florida simply has no legitimate basis for its law:
The Court presumes that Florida’s decision to enact [the statute] reflects the state’s desire to safeguard its residents’ rights to medical privacy and prevent “discrimination” against unvaccinated residents. . . . Defendant fails to articulate why [these] are legitimate local purposes or how they weigh against any burdens that the Statute imposes on interstate commerce. Defendant’s mere assertion of protecting medical privacy and preventing “discriminating” against unvaccinated persons, without more, fails to satisfy the dictates of Pike.
The problem, in Judge Williams’s view, is that the law does not go far enough: If passengers can be asked to disclose their vaccination status, and if those who are unvaccinated or refuse to answer can be subjected to different treatment than vaccinated passengers, this means that there is no privacy or discrimination issue. But this is a weak argument: A state is allowed to pass laws to protect some interest (here, the ability of unvaccinated people to travel) without being rigidly extreme about it. DeSantis is being punished for being reasonable.
Judge Williams also expressed concern that it would complicate the job of the cruise line if some passengers were unvaccinated, because many of the foreign ports the ship sails to either require proof of vaccination to enter or impose their own complex and varying rules for unvaccinated travelers. Certainly, simplifying the interaction between Americans at sea and foreign ports of call is a legitimate federal interest in regulating travel by sea. But that does not mean that American ports can never have any laws of their own; nowhere in Judge Williams’s opinion does she suggest that a state could not apply more stringent rules than those of Belize or the Bahamas. She is simply putting a thumb on the scales in favor of her preferences.
Hostility to the Florida law pervades her First Amendment analysis as well, which is full of potshots at Florida for not compiling a sufficient legislative “record” of “evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation.” But the intrusion is the demand for proof of vaccination, and the cruise line is suing to get it. The privacy considerations may not be that persuasive, but they are not nothing: Written proof of vaccination reveals which vaccine was received, when, and from what provider.
There are, as I said, serious federalism issues with the Florida rule. I would be open to a better-argued case for why Florida simply should not be allowed, as a structural matter, to ban ships in international travel from requiring proof of vaccination of their passengers, or for why the CDC’s general authority to regulate travel of potentially infected people clashes with this law. But Judge Williams has not made that case and seems to have gone out of her way to rule on the basis of just disliking Florida’s law. The Eleventh Circuit should not let this ship sail.