\lurk off\
I missed the beginning of the session, but heard the Order recitation; here's a quick analysis of the Court's Order as read. Judge Cooper granted a permanent injunction in this case, but it simply requires government agencies (and not the Governor) to follow existing Florida law, namely the Florida Parents' Bill of Rights. I would anticipate an appeal by both sides, since relief was granted on only two of the plaintiffs' claims and denied on three claims.
This is not an earthshaking decision; it is from a sleep-deprived judge, relying principally on basic legal principles. There is a much more important decision handed down last night by U.S. Supreme Court on the CDC's eviction ban that actually deals with the CDC's power under the Constitution to issue orders during pandemics (see comment to DisneyCane below). Judge Cooper's decision here is much more timid than the Supremes, but that is because he's a lower court judge and they ... are not).
It's important to recognize that Judge Cooper's Order here follows the same pattern I've pointed out before in the course of pandemic judicial decisions: early in the pandemic, there was a lot of deference to government's emergency orders, but now the government will be put to its proof rather than given a great deal of leeway. But he didn't follow the pattern very far. Judge Cooper held the government had to show only a little proof that at least some doctor, somewhere, had supported a mask ban, even though the plaintiffs' evidence (from the CDC mostly) against a mask ban was "overwhelming." At this preliminary stage of this case, he ruled the government was able to show enough evidence to defeat two of the plaintiffs' claims, and not enough to defeat two others (the fifth claim was denied on technical grounds). That's timid, especially in a constitutional challenge (McCutcheon v. FEC, governmental policy affecting constitutional rights cannot be based on "mere speculation").
As you probably guessed with that lead-in, what is most important in any public policy challenge is the standard of review and the burden of proof. Judge Cooper started out using the same standard of review almost every court reviewing a pandemic order has used -- a version of "intermediate scrutiny," meaning that, in enacting the ban on masks, the government had to show evidence demonstrating an substantial governmental interest (protecting public health, for example), and that their remedy (the mask ban) was reasonable and necessary to achieve that interest, and that there was no less restrictive alternative. In fact, Judge Cooper found that the mask ban did not even meet "rational basis," the lowest possible standard of review: "there is no reasonable or rational justification for not following all provisions of Florida law." The mask ban was, as lawyers say, "ultra vires," beyond the government's statutory authority. The government's downfall was that the Florida Parents' Bill of Rights, "signed by the Governor," gives school boards certain Due Process rights to present evidence to meet the same burden of reasonableness, necessity, and less-restrictive alternatives. The mask ban order did not do so. So, Judge Cooper repeatedly said that the mask ban violated Florida law. Violating the law is never a substantial government interest, and the government did not show that it even considered whether there was a less restrictive alternative which would have permitted parents to "opt out" of the ban. I do think Judge Cooper's ruling will be clarified on appeal, however it turns out, since he also ruled that the Florida Parents' Bill of Rights granted certain rights that would not be reviewed by courts; that sounds like the sort of thing that appeals court judges generally don't like. So don't expect a simple or clear appeals court decision; more likely one that will deal with a lot of jurisprudential background, as did Judge Cooper.
Perhaps it would be more accurate to say that the State could put up that defense, but the challenge could still win. In that case, especially under last night's Supreme Court decision blocking the eviction ban, it's highly likely that the State would not win without at least showing evidence satisfying the same kind of analysis about need, reasonableness and less burdensome alternative. Given the various claims rejected in this and other cases, and Justice Barrett's shadow docket dismissal of the Indiana University students' very extensive and well-pled Petition for Emergency Relief against a vaccine mandate, I'm not sure they would win. Quoting from last night's decision in Alabama Association of Realtors v. HHS:
"We expect Congress to speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'" Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). That is exactly the kind of power that the CDC claims here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium. ... And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435 (1982)."
So the Florida Legislature would have to legislate quite carefully under this standard, with hearings and evidence. The Court that really matters is looking pretty carefully at what governments do in these cases, and protecting the "right to exclude" from your property would seem to be a powerful element in their considerations. It's probably a safe bet that the Supremes would not use a low "rational basis" standard of review, but would require much more to justify a vaccine passport ban.
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