Official: Mediation in lawsuit against federal gov., CDC over cruising shutdown has failed

[cured]

Numerous polls by different entities have been taken. Every one of them shows that 85% or more of cruisers prefer a vaccinated cruise. Why would the cruise lines capitulate to DeSantis to not have vaccinated cruises when the vast majority of their customers have spoken? Good business dictates that they satisfy the 85+% of their customers.

 

It is fun to watch the 15% throw a mini temper tantrum, blaming everyone they can think of, because they are not getting their way to cruise without a vaccine.

 

Edited June 3, 2021 by cured

[time4u2go]

1 hour ago, boatseller said:

Yes.  Florida holds all the cards.

 

Do they?  Can't the cruise lines sail out of other states?

[boatseller]

Just now, jrapps said:

A-ha! You missed a important part of this, and this is what happens when you mention a statute, but don't link to it or quote it!

 

The Federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution. Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

 

https://www.hhs.gov/answers/public-health-and-safety/who-has-the-authority-to-enforce-isolation-and-quarantine/index.html#:~:text=Under section 361 of the,United States and between states.

 

Just because a disease is already pervasive in the US does not limit the HHS or CDC to regulate and control it's spread.

 

A breakthrough.  Recognizing the other argument is the first step.

Um...no.  But awesome try!  Really.  I did not miss any point.  Nothing in the HHS FAQ changes the argument, it's just an FAQ.

 

You need to read the actual statute and the NSO.  My argument is that the NSO does not meet the scope described in Section 361 or the intro to the NSO itself.

 

The fact that they can take measures doesn't mean they have to and, news flash, most often don't.  Somehow new strains of Influenza get here and no one seems to care.  They didn't to anything for Zika.

[harkinmr]

53 minutes ago, boatseller said:

I have no idea what the judge will do but he should grant the injunction.  But I also know Judges can be wrong.

 

 

 

13 minutes ago, jrapps said:

A-ha! You missed a important part of this, and this is what happens when you mention a statute, but don't link to it or quote it!

 

The Federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution. Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

 

https://www.hhs.gov/answers/public-health-and-safety/who-has-the-authority-to-enforce-isolation-and-quarantine/index.html#:~:text=Under section 361 of the,United States and between states.

 

Just because a disease is already pervasive in the US does not limit the HHS or CDC to regulate and control it's spread.

 

A breakthrough.  Recognizing the other argument is the first step.

Oh my!  Arguing facts to someone ignoring them?  How dare you! 😉 

[boatseller]

6 minutes ago, harkinmr said:

You know, you and others keep making these pat statements about public confidence in the CDC, the NIH and Dr. Fauci.  You certainly don't speak for everyone and I'm not sure what source you have to support what you assert.  And political opinions, media personalities and conspiracy theories don't count as support. 

Right, because demand for "Dr." Fauci's book is so amazingly high it's been cancelled by everyone.  To save the trees, right?

 

Dang!  Those crazy conspiracy mongers at Amazon!

[jrapps]

1 minute ago, boatseller said:

Um...no.  But awesome try!  Really.  I did not miss any point.  Nothing in the HHS FAQ changes the argument, it's just an FAQ.

 

You need to read the actual statute and the NSO.  My argument is that the NSO does not meet the scope described in Section 361 or the intro to the NSO itself.

 

The fact that they can take measures doesn't mean they have to and, news flash, most often don't.  Somehow new strains of Influenza get here and no one seems to care.  They didn't to anything for Zika.

OMG, fine. Here is the actual statute (not an FAQ) which you still failed to provide.

 

42 U.S. Code § 264 - Regulations to control communicable diseases

"The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession."

 

https://www.law.cornell.edu/uscode/text/42/264

 

This statute gives them VERY broad authority. Just because you don't like it does not make what they are doing ILLEGAL.

 

[boatseller]

Just now, jrapps said:

OMG, fine. Here is the actual statute (not an FAQ) which you still failed to provide.

 

42 U.S. Code § 264 - Regulations to control communicable diseases

"The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession."

 

https://www.law.cornell.edu/uscode/text/42/264

 

This statute gives them VERY broad authority. Just because you don't like it does not make what they are doing ILLEGAL.

 

Seriously?  You're just quoting the same text I did.  

 

"you still failed to provide"  False, completely false.  100% false.  I told you the exact statute and, lookee there, you found it.

 

What?  This debate isn't about inter State issues.  Well it could be that's irrelevant.

 

"prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States"

 

The State can argue the NSO does not and will not accomplish this.  Back to square one.

[boatseller]

1 minute ago, Pratique said:

Congress doesn't seem to mind what CDC is doing either. Write your congressman instead of expecting a court to deal with it. None of these judges want to be the ones making these far reaching decisions.

Ayayay, that's exactly what the courts are for.

[Pratique]

1 minute ago, boatseller said:

Ayayay, that's exactly what the courts are for.

Overriding public health regulations is not a usual role for the courts.

[jrapps]

3 minutes ago, boatseller said:

Seriously?  You're just quoting the same text I did.  

 

"you still failed to provide"  False, completely false.  100% false.  I told you the exact statute and, lookee there, you found it.

 

What?  This debate isn't about inter State issues.  Well it could be that's irrelevant.

 

"prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States"

 

The State can argue the NSO does not and will not accomplish this.  Back to square one.

Yes, but it seems I am the only one who read it. You keep pasting in a quote of the statute and cutting off the last sentence. You can't just ignore that part.

 

In post#37 above your argument was "Covid is already endemic and wide spread in the United States.  The current NSO does not satisfy this mandate because it has no material affect on the prevalance of covid and never would have"

 

There is your flaw. Just because it is already prevalent in the US does not limit their scope. You can type "prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States" all you want, it is irrelevant. Covid is here. The statute YOU mention gives them broad authority to "make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases"

 

The states can argue that the NSO or CSO don't accomplish this, but it will be a failed argument. They are designed to prevent introduction, transmission, and spread.

[boatseller]

Just now, Pratique said:

Overriding public health regulations is not a usual role for the courts.

Irrelevant.  The court has just as much authority over the CDC as it does over Federal Housing Administration.

[Russ Lomas]

2 hours ago, BeancounterUSA said:

If a mediation "fails" then I have a hard time believing it was really a mediation, but rather another venue in which both sides restate their position.

 

A true mediation from my experience, has a mediator, who makes a decision both parties are bound by.  Having been involved in a corporate mediation some years ago, I can say that it's my opinion that mediators have a goal of ending the dispute with both parties about equally unhappy. 

 

I apologize if I am incorrect (I am Canadian, so I am bound to always apologize first when I speak), but I believe what you are referring to is "binding arbitration" where the arbitrator listens to both sides and then makes the decision.  The mediator simply listens to both sides and tries to get the parties to come to a common ground to set an agreement in place, but the mediator never makes a decision.

[harkinmr]

9 minutes ago, jrapps said:

Yes, but it seems I am the only one who read it. You keep pasting in a quote of the statute and cutting off the last sentence. You can't just ignore that part.

 

In post#37 above your argument was "Covid is already endemic and wide spread in the United States.  The current NSO does not satisfy this mandate because it has no material affect on the prevalance of covid and never would have"

 

There is your flaw. Just because it is already prevalent in the US does not limit their scope. You can type "prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States" all you want, it is irrelevant. Covid is here. The statute YOU mention gives them broad authority to "make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases"

 

The states can argue that the NSO or CSO don't accomplish this, but it will be a failed argument. They are designed to prevent introduction, transmission, and spread.

Apparently he can ignore it. It's what a lot of people do these days. Just drop or disregard the parts you don't like.  You have a lot more patience than I do.  Kudos.

[jrapps]

Just now, harkinmr said:

Apparently he can ignore it. It's what a lot of people do these days. Just drop or disregard the parts you don't like.  You have a lot more patience than I do.  Kudos.

Honestly, I am done with the argument. Too stressful trying to use logic on people with no capacity to be open to other points of view.

 

If the judge rules that the CDC overstepped and grants the injunction, I will admit I was wrong. If the judge denies the injunction, I will enjoy hearing boatseller and others rant at how the judge was wrong. 😝

 

[Pratique]

13 minutes ago, boatseller said:

Irrelevant.  The court has just as much authority over the CDC as it does over Federal Housing Administration.

The case law is not on your side in this one. Remember that the CSO is directed at the cruise lines, not the state. The state's alleged injuries are indirect at best.

[boatseller]

1 minute ago, jrapps said:

Yes, but it seems I am the only one who read it. You keep pasting in a quote of the statute and cutting off the last sentence. You can't just ignore that part.

 

In post#37 above your argument was "Covid is already endemic and wide spread in the United States.  The current NSO does not satisfy this mandate because it has no material affect on the prevalance of covid and never would have"

 

There is your flaw. Just because it is already prevalent in the US does not limit their scope. You can type "prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States" all you want, it is irrelevant. Covid is here. The statute YOU mention gives them broad authority to "make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases"

 

The states can argue that the NSO or CSO don't accomplish this, but it will be a failed argument. They are designed to prevent introduction, transmission, and spread.

Well, better, but still no.  No flaw.  All you're doing is nitpicking my copy paste skills.  Though I do not consider the intra state issue germane.

 

My point is that covid is already here and common so this regulation does not meet the standard set forth in section 264 or the Statement of Intent in the NSO itself.  The state is arguing similarly on a broader scale that the NSO does not meet the requirements of the PHSA at all.  Basically, it is capricious and arbitrary.

 

Given overall prevalance, vax rates, treatments, maybe the State is asking for rules similar to Influenza and other respirtory diseases.

[jrapps]

Just now, Pratique said:

The case law is not on your side in this one. Remember that the CSO is directed at the cruise lines, not the state. The state's alleged injuries are indirect at best.

And if the judge rules that way, I am prepared to admit I was wrong.

 

If the judge rules against the injunction, I do not expect others to do the same.

[boatseller]

Just now, Pratique said:

The case law is not on your side in this one. Remember that the CSO is directed at the cruise lines, not the state. The state's alleged injuries are indirect at best.

Nope.  If that were the case, the CDC would have first challenged Florida's standing.  That the case continues means the Court has accepted it.

 

And the 10,000's of Floridians out for work are 'indirect injuries'...wow....ok....

[Pratique]

1 minute ago, boatseller said:

Nope.  If that were the case, the CDC would have first challenged Florida's standing.  That the case continues means the Court has accepted it.

 

And the 10,000's of Floridians out for work are 'indirect injuries'...wow....ok....

The CDC has not yet filed an answer to the complaint. At that time we will see if they challenge standing. We have not reached that stage of the litigation yet.

[boatseller]

9 minutes ago, harkinmr said:

Apparently he can ignore it. It's what a lot of people do these days. Just drop or disregard the parts you don't like.  You have a lot more patience than I do.  Kudos.

Haha, I explained why left out a largely irrelvant section.  You gotta keep up!

[Pratique]

The opinion of the trial judge in one of the CDC eviction cases is enlightening. Although the facts are different, the same law is in play.

 

https://www.courtlistener.com/docket/18658400/61/alabama-association-of-realtors-v-united-states-department-of-health-and/ (emphasis added)

 

As to the second factor—whether the movant will be irreparably injured absent a stay—

the movant must make a strong showing “that the injury claimed is both certain and great.”

Cuomo, 772 F.2d at 976 (internal quotation marks omitted). “Probability of success is inversely

proportional to the degree of irreparable injury evidenced.” Id. at 974. “A stay may be granted

with either a high probability of success and some injury, or vice versa.” Id.

       The Department has made a showing of irreparable injury here. As the federal agency

tasked with disease control, the Department, and the CDC in particular, have a strong interest in

controlling the spread of COVID-19 and protecting public health. The CDC’s most recent order

is supported by observational data analyses that estimate that as many as 433,000 cases of

COVID-19 and thousands of deaths could be attributed to the lifting of state-based eviction

moratoria. See 86 Fed. Reg. 16,731, 16,734 (Mar. 31, 2021). The CDC Order also cites a

mathematical model that “estimate[s] that anywhere from 1,000 to 100,000 excess cases per

million population could be attributable to evictions depending on the eviction and infection

rates.” Id. To be sure, these figures are estimates, but they nonetheless demonstrate that lifting

the national moratorium will “exacerbate the significant public health risks identified by [the]

CDC.” Defs.’ Mot. to Stay at 3. Even though “vaccinations are on the rise,” Pls.’ Opp’n at 2, at

least as of last week, the nation was averaging “more than 45,000 new infections per day,” Defs.’

Mot. to Stay at 5–6, and the recent “emergence of variants” presents yet another potential cause

for concern, see 86 Fed. Reg. at 16,733. Thus, the risks to public health continue.

 

...

 

 

A stay to allow the D.C. Circuit time to review this Court’s ruling, presumably on an

expedited basis, will no doubt result in continued financial losses to landlords. But the

magnitude of these additional financial losses is outweighed by the Department’s weighty

interest in protecting the public. See League of Indep. Fitness Facilities & Trainers, Inc. v.

Whitmer, 814 F. App’x 125, 129–30 (6th Cir. 2020).

[boatseller]

2 minutes ago, Pratique said:

The CDC has not yet filed an answer to the complaint. At that time we will see if they challenge standing. We have not reached that stage of the litigation yet.

Perhaps, but then we'll just accuse them of 'negociating' in bad faith.

[kstetser]

12 minutes ago, Pratique said:

The case law is not on your side in this one. Remember that the CSO is directed at the cruise lines, not the state. The state's alleged injuries are indirect at best.

And isn't it true that the state's alleged injuries can be cured by the State dropping their proof of vaccine ban?    (The same vaccine they cite in their suit as being something the CDC was not taking into account in the older version of the CSO?)

[Pratique]

2 minutes ago, boatseller said:

Perhaps, but then we'll just accuse them of 'negociating' in bad faith.

When you say "we'll" I take that to mean "I'll". Florida filed a motion for an injunction and then the judge sent them to mediation. The CDC didn't have a choice.

[Pratique]

4 minutes ago, kstetser said:

And isn't it true that the state's alleged injuries can be cured by the State dropping their proof of vaccine ban?    (The same vaccine they cite in their suit as being something the CDC was not taking into account in the older version of the CSO?)

No that is a separate issue. In any event the state's position is that the cruise lines can sail safely without proof of vaccination. Nothing like telling a company how to run their business, or anything like that.