This article about blocking vaccine passports in Florida was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On July 13, 2021, Norwegian Cruise Line Holdings LTD. (NCLH) sued Scott Rivkees, State Surgeon General and Head of the Florida Department of Health, challenging a Florida law that bans businesses from requiring vaccine passports. The lawsuit is in very early stage, but is well written and argued. Several of the arguments are specific to the cruise industry, but at least one would apply to any business.
The vaccine passports case
The lawsuit sets out the damage to the cruise industry from the COVID-19 pandemic. The pandemic led to a shutdown, with strong economic effects. After extensive efforts, NCLH is ready to reopen sailing on August 15, with safety measures in place – including requiring documentation confirming that its passengers have been vaccinated. But at the beginning of July, Florida enacted Fla. Stat. § 381.00316, which says, in the relevant part,
A business entity, as defined in s. 768.38 to include any business operating in this state, may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state. This subsection does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government-issued guidance to protect public health.
NCLH sued to challenge that act. It is making four main arguments against it:
- That the act conflicts with federal regulations, and when there’s a conflict, federal law wins, under our constitution’s supremacy clause that says that federal law is “the supreme law of the land.”
- That by interfering in communications between business and customers, the act violates the business’ First Amendment right, limiting its free speech.
- Violates the dormant commerce clause – which means puts unjustified obstacles in the way of international and interstate commerce (whereas the power to regulate interstate commerce or international trade belongs to the federal government).
- Violates the Fourteenth Amendment by interfering with the business’ freedom to run its business without even meeting the minimal burden of rational review – interferes in an arbitrary, unjustified manner.
Two of these – 1 and 3 – are probably relevant to the cruise industry, maybe one or two more, but not business generally. Points 2 and 4, however, apply to all business under a ban on vaccine passports, and this case can therefore have broader implications. Let’s examine each in turn.
The United States Constitution states that federal law – constitution, laws, rules – is the supreme law of the land. In practice, this means that valid Congressional law – including valid agency rules – trump conflicting state law, or in legal parlance, preempt state law. It’s more complicated than that – law often is – but for the purpose of this lawsuit the core insight is that if state law conflicts with federal law, the courts’ job is to set aside the state law and uphold federal law.
That said, there’s a legal presumption against preemption courts sometimes draw on, that says that federal law should not be read to preempt state law unless that was clearly what Congress – or the agency in question – intended.
That is not particularly relevant here, as will become clear. At essence here are CDC regulations called the Conditional Sailing Order that allow cruiseships to resume operations – after initial closures – if they follow some conditions.
Important for this purpose is that in an operations manual interpreting the regulations, CDC offered that highly vaccinated cruises – 95% of crew and passengers vaccinated – will have an easier time getting back to business, and operators of vaccinated cruise ships have discretion to grant exemptions from things like refusing to board fully vaccinated passengers who were exposed to COVID-19 and allows conducting common activities without masks. NCHL built those requirements into its plans and, as the complaint explained,
75. As part of its application for a Conditional Sailing Certificate for the Norwegian Gem, NCLH attested to CDC, under penalty of perjury, that its cruise ships will sail only upon confirmation that at least 95% of passengers have been fully vaccinated prior to sailing.
76. CDC approved NCLH’s application for a Conditional Sailing Certificate for the Norwegian Gem on July 9, 2021.
This is obviously in direct conflict with the Florida ban that prohibits business from requiring documentation certifying COVID-19 vaccines.
So on that alone, NCHL would have a very strong preemption argument. But, things are never quite that simple. In April 2021, Florida filed a lawsuit challenging the CDC’s regulations imposing the regulations above, on a number of causes, including an argument that they are beyond CDC’s statutory power. On June 18, 2021 a federal district court judge gave a preliminary injunction putting the regulations on hold.
This is not the end of that case, but because one of the criteria for granting a preliminary injunction is that there is likelihood the person bringing the suit will win on the merits, it indicates that the judge thinks Florida has a claim. That injunction is currently in place, which suggests that the regulation is not currently enforceable. If it is not a valid regulation, there is no conflict with state law, and there is no preemption – no basis to set aside the state law on these grounds.
The complaint points out that the stay is currently under appeal to the Eleventh Circuit. The appeal was filed on July 7, 2021, and is currently in discussion. Although such appeals tend to move fast, because by its nature, a preliminary injunction can be time-sensitive, it still takes time for both parties to argue, and it will take longer.
The question is what happens in the meantime. This is mid July. For NCLH to travel mid August, it needs to prepare and plan. NCLH can at least make a decent argument that right now, the company Is exactly in the situation preemption was designed to prevent, between the CDC’s regulations and the Florida law. NCLH can and did point out that it already made an attestation under penalty of perjury, and that’s in place, and the ban makes it tricky to comply with CDC’s instruction.
At the very least, the complaint makes a good case that the harm in the interim to its business is, in its words, “imminent, substantial, irreparable” – it travels to other ports without similar bans, some of which require vaccine passports, and it cannot verify status without documentation. And the risk of COVID-19 goes up without being able to verify vaccination.
On Saturday night the Eleventh Circuit court of appeals issued a stay to the district court’s injunction. This may suggest the court of appeals disagrees that Florida has a good chance of success on the merits in that case. But at any rate, it leaves NCLH facing a direct conflict between federal regulations and state law, strengthening their preemption claim.
The argument here is that by prohibiting NCLH from requiring documentation, Florida is “restricting the transmission of information” based on its content, and that violates the First Amendment’s protection of Freedom of Speech. This seems like a trickier argument. There is a long standing history of limiting questions employers, for example, can ask of employees, and this includes disability related inquiries.
There are not similar requirements for customers that I’ve seen – though this is not my area, and I may be wrong – but the free speech issue would be the same, and I don’t know of a challenge to the ADA’s limits based on this. Tellingly, the complaint does not cite cases supporting this argument.
I am not sure regulating which documentation business can require is regulating speech per se – it seems more like regulating action – and I am not sure we want to make it hard for states to regulate this, because I would be worried that this can be used to get around anti-discrimination laws. I agree with the complaint’s argument that Florida will have trouble showing that there’s a valid interest in prohibiting NCLH from asking for vaccination status, but I think that is more relevant to the fourth argument. This argument seems to me tricky.
Part of the irony is that the ban prohibits the cruise ship from requiring vaccine passports even though – as the study and other information in the complaint make clear – most passengers want the ship to require it. In that sense, it is limiting speech. But the problem with requiring documentations is that you can’t draw a line allowing or forbidding it based on whether most passengers like the requirement. Either it’s interference with speech, or it is not.
Dormant Commerce Clause
Under our constitution, the power to regulate international and inter-state commerce is granted to the federal government. Another aspect of this is that if states act in ways that make interstate commerce substantially harder, courts can strike the act down for violating the dormant commerce clause. This is to prevent states from being able to limit commerce from other states or undermining national interests.
The complaint points out that Florida’s ban on vaccine passports “threatens to disrupt and even shut down the interstate and foreign cruise operations of NCLH.” Basically, because of the increased risk of exposure to COVID-19 on a cruise ship without a vaccine requirement, the ban will require NCLH to shut down its Florida operations, or at least substantially impair them.
The ships leaving Florida stop in other ports, where there may be a requirement of vaccination, and not having documentation can make it impossible to stop there, or make it impossible for passengers to disembark. In that, the ban interferes in commerce – a commercial cruise – between Florida, other states, and other countries.
This seems a strong claim in the context of a cruise, because it really will be hard for the ship not to get documentation in Florida and have it elsewhere, so it will interfere.
The Fourteenths Amendment prohibits states from depriving people of “life, liberty, or property, without due process of law.” This has two aspects. One aspect is that any state actor has to follow certain procedures before depriving someone from a protected interest. This is called procedural due process, and I teach this in several classes, but it’s not the argument here.
The other part of the due process clause is that courts interpret it to mean that states cannot interfere in protected interests at all – regardless of how many procedures they give – without sufficient justification, without having a sufficiently strong interest and having a good enough connection between the measure and the interest. This is referred to as substantive due process.
Since practically any law affects liberty somewhat, and many affect property, and courts carefully avoid becoming the judge of whether a law is smart or not, the standard applied to the vast majority of rules limiting liberty or property is a pretty low bar called rational basis review.
Under rational basis review, a court asks if the measure has a rational connection to a legitimate government interest. As long as government has some valid interest, and the measure is somewhat connected to it, the government is good, under this argument.
The complaint makes a strong case that Florida’s ban on requiring documentation, at least as applied to cruise ships, cannot meet even this low bar.
Among the points the complaint made:
- In the context of a deadly pandemic, the ban prevents NCLH from supporting themselves with their chosen occupations and interferes with the rights of NCLH, its crew and passengers to make well-informed medical decisions (there are protected interests affected).
- The risk of transmission of COVID-19 in close quarters of cruise ships is real, and the vaccines can effectively reduce it, prevent deaths and hospitalization, so having information about COVID-19 vaccines is a matter of life and death.
- The CDC calls for vaccination on cruise ships as essential for safe operation beause of this simple reality.
- Florida has no valid interest in preventing NCLH from requiring passengers from giving it potentially life-saving vaccines.
- If Florida is worried about customers who cannot or do not want to vaccinate, or give vaccine documentation, she has less restrictive ways to address it, for eample, require special exemptions.
This argument can be adapted to other business, and states may have trouble justifying choosing to prohibit private business from acting to increase their own safety.
In addition to these arguments the lawsuit points out the importance of the cruise industry to Florida. In essence, it is explaining that the ban on requiring vaccine documentation may not only violate several legal doctrines, but is in tension with Florida’s self interest. This is not necessarily a crucial legal point, but it does support the irrationality of the ban – and is a reason Florida may not defend its ban as rigorously as it may otherwise.
Conclusion on vaccine passports
In a strongly worded lawsuit NCLH makes a case that Florida’s ban on providing vaccine passports is in tension with several standard legal doctrines. The strongest arguments are probably the tension with the CDC’s regulations – though that’s complicated by the stay putting those regulations on hold, the argument that the ban undermines interstate and international commerce, and somewhat less, the argument that the state is violating NCLH’s liberty without sufficient justification. The First Amendment argument is, I think, weaker. But it’s a well-argued complaint, and the cruise ship has a decent chance in court.
The claim is in early stages, but because of the timing – NCLH is aiming for August – would likely move fast. We will see.