COVID regulation challenge is mooted because the state rescinded the rule

Here is another COVID-19 case involving a challenge to a government health directive. The case might be interesting, but it is dismissed as moot because the executive order that plaintiff challenges has been rescinded. 

The case is Weisshaus v. Hochul, a summary order issued on November 29. Plaintiff claims the executive order mandating that certain travelers compete a health form for COVID-19 violates the Supremacy Clause of the U.S. Constitution. That clause says that federal law reins supreme and state laws cannot contradict federal law. 

As the trial court summarized plaintiff's claims, "In September 2020, the Governor of New York issued Executive Order 205.1 in response to the ongoing COVID-19 pandemic. The Order requires, among other things, that certain travelers complete the 'New York State Traveler Health Form.' Travelers must disclose whether they have arrived from a country with a moderate or high rate of COVID-19, whether they have recently tested positive for the disease, and whether they have recently experienced any symptoms." When Plaintiff arrived at Idlewild Airport in Queens from an international flight in November 2020, the customs people gave him a COVID-19 safety pamphlet and told him to complete a Traveler Health Form. After completing the form, plaintiff went home to New Jersey. 

The trial court denied plaintiff's motion for a preliminary injunction, prompting this appeal. The trial court noted in its January 2021 ruling that COVID-19 was running rampant, there was no cure at the moment, people were dying and losing their businesses, and all plaintiff was claiming was that he had to complete a form. Thus, no preliminary injunction. However, many COVID-19 cases ended up winning because the courts sometimes found a way to show that the challenged rule was unconstitutional. Hence, this appeal.

But the Second Circuit (Chin, Carney and Robinson) says appeal is moot because the state directive has been rescinded. There are ways around a finding of mootness, i.e., if the plaintiff can show the government might reinstate the regulation at a later date. Plaintiffs often fail to overcome a mootness finding, as courts presume that governmental decisions to rescind a regulation or law will not be reversed at a later date. It is too speculative to assume that the bad regulation will come back. Plaintiff cannot show that the regulation will return. That means the case is over. 

A portion of this appeal is not moot, however. Plaintiff says the government will use certain information against him arising from the now-expired Executive Order. But plaintiff suffers the consequences of another procedural barrier to relief: he cannot show there will be any imminent injury from the old rule because plaintiff was actually exempt from the rule. This means plaintiff has no standing to challenge how the rule's possible abusive consequences will affect him.