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Florida's vaccine passport ban for cruises likely unconstitutional, attorney says

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Robert Kritzman believes Florida lacks the authority to forbid cruise lines from requiring documentation fo COVID-19 vaccination
As Florida Gov. Ron DeSantis rails against the legality of Celebrity Cruises' requirement for proof of COVID-19 vaccination for its restart from Florida, a maritime legal expert thinks the state has 'crossed a line.'

Robert Kritzman, a partner at Lewis Brisbois with extensive experience in maritime law and, specifically, the cruise industry, thinks Florida's vaccination passport ban as applied to international cruises is unconstitutional.

Commerce Clause

In Kritzman's view, it violates the Commerce Clause, which gives Congress primary authority to regulate interstate and international commerce and limits a state's ability to interfere in such activity.

The Centers for Disease Control and Prevention recommends cruise passengers and crew be fully vaccinated for COVID-19 and gives lines the discretion to allow much greater on-board freedoms to those ships with 95% vaccinated travelers. It also allows these ships to forgo test cruises and has approved Celebrity Edge to begin sailing June 26 from Port Everglades.

Celebrity plans to go the full (95%) vaccination route, with passengers over the age of 16 required to present proof of vaccination. On Aug. 1, that drops to everyone 12 and older.

In reaction, the governor's office reiterated its stance that CDC has no legal authority to set any sort of requirements to cruise, adding that the agency's guidance on COVID-19 vaccination is 'coercive,' and said Celebrity would be in violation of Florida law for requiring proof of vaccination and could be fined $5,000 each time it requires a customer to document inoculation. 

Speaking at a news conference today, DeSantis said: 'We are going to enforce the law. We have laws that protect people and the privacy of our citizens ... You don't pass a law and then not enforce it against giant corporations.' The legislation takes effect July 1. 

Congress enables CDC to regulate public health

According to Kritzman, Congress has enacted laws that give CDC the ability to impose certain regulations for public health purposes. This enabling legislation, in his view, applies in CDC's dealings with the cruise industry.

The fact that CDC doesn't require cruise ships to mandate COVID-19 vaccination makes things a little less certain in its position with Florida. However, Kritzman believes Florida still has entered an area involving interstate/international commerce that it has no authority to regulate under the Commerce Clause.

 

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