The legislature of Florida has seen fit to interfere with private commercial relations and liberty of contract by sending a bill to the desk of Gov. Ron DeSantis that would ban businesses, broadly defined, from requiring patrons or customers to show proof of COVID-19 vaccination as a condition of service (see new Section 18). Tough luck, cruise lines!
As I noted in this space earlier this month, in general no federal law prohibits private firm policies of this sort, which violate neither the HIPAA medical‐privacy law nor (with rare exceptions) the Americans with Disabilities Act. These days some American conservatives seem to have fallen in love with the idea of declaring all businesses to be public accommodations subject to a general must‐serve‐all‐comers obligation. Fortunately, this has never been the law and is not the law now.
Others can debate whether the new Florida enactment is a good idea, or is consistent with principles of individual liberty. (I think it’s neither.) Either way, it raises a question: if the Florida legislature is only now getting around to enacting such a prohibition, under what authority was Gov. Ron DeSantis acting on April 2 when he signed an order purporting to ban such business practices? The legal authority cited in his order is thin and unhelpful, and I’m going to take an educated guess that had a more solid legal grounding for the edict been available, the governor’s lawyers would have put it in. Decree first, legal authorization later?
Some will probably argue that the past year has shown governors to have super‐broad powers to issue decrees under public health powers, which means they must also have super‐broad powers to issue decrees that relate in some way to public health as an issue whether or not they function to prevent transmission of a communicable disease. That’s not the way the laws work, though. Long before 2020, every state legislature had passed legislation delegating exceedingly broad (unwisely so, you might say) powers to its governor in the name of communicable disease prevention, and the federal courts, in cases like Jacobson v. Massachusetts, had (unwisely or not) established a record of upholding the exercise of such powers. But neither legislatures nor courts had thereby established by analogy (and we should be glad they didn’t) that governors thereby acquired all‐purpose power to rule by decree on other subjects, whether the result is to intercept the transmission of communicable disease or not.
The past fifteen months have seen widespread challenges in court to state, city, and county public health decrees. The results have been a mix: in various instances courts have found that governors, mayors, or county executives overstepped the language of the statutes granting them power, and in one vitally important area (religious assemblies) the U.S. Supreme Court stepped up to revisit its own constitutional jurisprudence so as to accord the underlying activity more protection. At the same time, it is equally the case that courts have declined to strike down most of the governors’ actions, either as beyond statutory power or as overstepping even the ultra‐lenient constitutional standard of Jacobson. That has been mostly the case even in areas like mask mandates regarding which state statutory authority is sometimes on shakier ground.
More recently, the momentum has shifted toward efforts in the state legislatures to narrow and constrain governors’ emergency powers. I agree with Josh Blackman here that that’s exactly the right direction for the debate to be taking: there should be a reachable consensus that the public health powers delegated to governors are too broad, that the result over the past 14 months has been to enable mistakes, abuses and unwarranted infringements of liberty, and that legislatures should get to work identifying and withdrawing some of the excessive powers they have unwisely accorded the executive branch. None of which, however — to return to our original point — serves to justify what elected officials in Florida have just done.