The interconnected economy and the broken leg
The rental and leasing industry is the clearest case in the economy of an industry suspended through its counterparties, because it owns nothing its customers do not use somewhere else. An order that closed a construction site in New Jersey idled an excavator owned by a renter in Pennsylvania; an order that quarantined arrivals in Hawaii emptied a counter in Honolulu of travelers from California; an order that prohibited weddings in Michigan cancelled a tent owned by a renter in Ohio; an order that closed the retail partners' stores in Texas closed the lease desks a consumer-rental lessor staffed inside them; an order that closed the plants of Michigan stopped the fleet a renter in Florida had ordered; an order that closed the schools of every State removed the parents who wash the cars and erect the tents. Each is an order limiting commerce, and the statute reaches it. The suspension those orders caused did not end on the day each expired; the orders' own reopening steps fix how long the restoration took, and orders were in force in every quarter through September 30, 2021. This section states the mechanisms, the counterparty orders as orders, the restoration arithmetic and the textual point on which continuing suspension rests.
Supply chain and borders
The industry's fleet is built in plants that Michigan's Executive Orders 2020-21 and 2020-42 closed from March 24 to May 7, 2020 and that the Federal Reserve recorded as having "mostly shut down"; its equipment and parts cross borders that the Department of Homeland Security limited to essential travel from March 20, 2020 to November 8, 2021; its protective equipment fell under the Defense Production Act delegations and the scarce-materials designation from March 2020; and its 2021 fleet purchases were constrained by the semiconductor shortage the White House traced to "a six-week industry shutdown" and that the Department of Commerce was still soliciting evidence of on September 24, 2021.220 The Notice's Q&A-12 treats an order on a supplier as an order suspending the customer, and the United States has represented that the supplier rule "never even mentions a 'physical[ ] clos[ure]' order against the supplier"; the statute's text reaches the same result without the Q&A, because an order closing the plant that builds the fleet is an order limiting the commerce of the renter who buys it.221
Workforce, schools and child care
Every State closed its schools in March 2020, reaching at least 55.1 million students in 124,000 schools; the paid-leave mandate of April 1 through December 31, 2020 made every such closure a compulsory leave event for every employer under 500 employees; the remote and hybrid orders of the 2020-21 year kept the parents of school-age children at home on the days the school did; the face-covering and quarantine orders of the 2021-22 year, in at least eighteen States and the District, removed a parent from the yard every time a child was quarantined; the standing quarantine and isolation orders of Indiana, Arkansas, Rhode Island, Delaware and San Diego County removed every exposed worker for ten to fourteen days; and the conveyance order, an airborne-transmission control on every conveyance and hub, governed every commute by bus, rail and ferry from February 1, 2021.222 A mechanic, a delivery driver and a tent crew cannot work from home; an order on the school was an order on the yard's labor.
Travel, tourism and gatherings
The Transportation Security Administration's checkpoint throughput fell 95.2 percent between March 1 and April 14, 2020, and the airlines carried 557 million fewer passengers in 2020 than in 2019; the Department of Transportation fixed the network by order through September 30, 2021; the arrival quarantines of up to eighteen States at once and the entry proclamations of five countries and regions removed the traveler; the gathering caps of every State ran into the summer of 2021, and Hawaii's returned on August 10, 2021; the Federal Reserve attributed the deceleration of September 2021 in part to "international travel restrictions."223 Every one of those instruments was an order on the traveler or the event, and the traveler and the event are the customer of the car counter and the tent; the meetings list on this page sets out those events, from The ARA Show to the State fairs, with the venue orders in force on their dates.
Courts, clerks and public offices
The motor-vehicle offices of nearly every State closed in March 2020, reopened by appointment through the summer, closed again in Illinois in the winter, and in Oregon, the District and California ran by appointment or on extended credentials into the third quarter of 2021; the recorders and notaries closed and reopened remotely. Every fleet vehicle bought, plated, registered, liened and sold ran through those offices, and the remote-notarization orders and statutes of nine States are the record of the closures they answered.224
Transit and health care
The conveyance order's airborne-transmission control governed every rental-car shuttle as a conveyance and every airport as a hub; the elective-procedure suspensions of the spring of 2020 and the Healthcare Emergency Temporary Standard of June 21, 2021 governed the hospitals and home-health agencies that rent home health equipment and the docks to which the industry delivers.225
The counterparty orders are orders
The statute asks whether the operation was partially suspended "due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings." It does not ask to whom the order was addressed. An order closing a construction site limits the commerce of the contractor and of every business that sells or rents to the contractor; an order confining the public to essential travel limits travel in terms and limits the commerce of every business whose customer must travel to it; an order prohibiting gatherings limits group meetings in terms and the commerce of every business that supplies them. The Notice's own Q&A-12 accepts the logic for suppliers and its Q&A-10 lists orders addressed to the public; the United States told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party"; and Tri-State fixed causation as but-for.226 This analysis treats every counterparty order as an order under the statute's words, and the industry's own filings under the securities laws describe the mechanism in the same terms: "many industries in which our customers operate were required to temporarily close their facilities or delay or cancel projects and events."227
The broken leg: the text
The clause makes an employer eligible if "the operation of the trade or business ... is fully or partially suspended during the calendar quarter due to orders." The phrase "during the calendar quarter" modifies "suspended." Congress did not write "due to orders in effect during the calendar quarter," and it did not write "for so long as the orders remain in effect." A suspension is, on the United States' own agreed definition, "[t]he act of temporarily delaying, interrupting, or terminating something," or "[t]he state of such delay, interruption, or termination," and a delay caused by an order does not end at the moment the order lapses; it ends when the delayed operation resumes its ordinary course.228 Tri-State holds that a suspension includes a "delay" and that "due to" is but-for causation: where, but for the order, the operation would have been running normally on a given day, the operation is suspended on that day because of the order.229 The Notice recognizes the same thing twice. Q&A-22 makes an employer whose suspension ended in the middle of a quarter "an eligible employer for the entire calendar quarter," which treats "during the calendar quarter" as modifying "suspended" and not "orders." Q&A-16(4) recognizes that when an order compels a change in how a business operates, "some adjustment period is expected," and that a "significant delay ... in moving operations" is itself "a partial suspension during that transition period," the two-week illustration being offered "for example."230 The Notice's own words confirm it.
The arithmetic for this industry
What the orders compelled this industry to dismantle is written in the orders and in the industry's filings, and the orders' own step dates fix how long the restoration took. The vehicle renter sized to a traveler base confined by forty-two stay-at-home orders, eighteen quarantines and Utah's travel declaration sold fleet down in the second quarter of 2020 through motor-vehicle offices that reopened by appointment from May 8 (California), May 11 (Indiana), June 15 (Nevada) and July 7, 2020 (New Jersey), and could rebuild only on the manufacturers' schedules after plants closed from March 24 to May 7, 2020 reopened and, in 2021, on the schedules a federally documented semiconductor shortage permitted; the airport counter it operated ran inside a flight network fixed by federal order from April 7, 2020 through September 30, 2021 and, from February 1, 2021, inside a transportation hub in which federal law imposed an airborne-transmission control, a mask of every person; and the traveler it served on July 1, 2021 was still barred at every land border and foreign airport and still quarantined in Hawaii and Kansas.231 Congress itself fixed two points on that curve: on December 27, 2020 it appropriated relief from rent the airport rental counter could not pay, and on March 11, 2021 it appropriated four times as much for the same relief.232 The equipment renter's customers restarted in the closure States in crews of two, five and ten (Vermont, April 20 to May 11, 2020), under phase requirements (Washington, April 24 to 29, 2020), under mandatory guidance (New York, May 15, 2020 to June 25, 2021) and under Executive Order 192 and its successors (New Jersey, November 5, 2020 through September 30, 2021), and a project delayed six weeks in the spring of 2020 reached its equipment-intensive phases six weeks late in every subsequent quarter. The event renter's market was prohibited in March 2020, capped at ten to fifty through the summer, prohibited or capped at ten again in some twenty States from November 2020, and released between April 16 (Colorado) and June 30, 2021 (Washington and Oregon), with New Mexico on July 1, Rhode Island on July 6 and Hawaii never; because the season is booked months ahead, the July 2021 calendar was built in the winter and spring of 2021 under caps of ten, twenty-five and fifty, and the events that could be booked under those caps were the events on the July calendar; the tents released from storage in June 2021 met, from July 17, face-covering and exposure-control orders on every indoor event in seven States and the District and the metros, and from August 16 vaccination-proof conditions in New York City, New Orleans, San Francisco and Honolulu.233 The consumer-rental showroom closed in March 2020 in some forty States, reopened at twenty-five to fifty percent in May and June 2020, fell to twenty-five percent or closed again in the winter, reached one hundred percent between March 12 and June 30, 2021, and, from July 17, again required, as an airborne-transmission control on every indoor business, a face covering of every customer in seven States, the District and the metros.234 The Bureau of Labor Statistics measured the curve: industry employment fell from 585,700 in February 2020 to 462,300 in April 2020, stood 22.7 percent below the prior year in July 2020, 15.2 percent below in July 2021 and 15.4 percent below February 2020 in September 2021.235 Those figures describe the industry; the arithmetic of the restoration rests on the orders' own dates.
What was still in force when the general restrictions ended
When the last statewide capacity and gathering orders lifted on June 30 and July 1, 2021, the instruments listed in the third-quarter section, subpart B, remained: the conveyance order and its directives; the entry proclamations, the land-border limitation, the Title 42 order and the inbound-testing order; the Department of Transportation's order; the federal workplace and site-access rules; Hawaii's proclamations, Safe Travels and Order for Self-Quarantine; Kansas's quarantine; the workplace standards of seven States; the sector orders issued under the continuing emergencies of thirty-five jurisdictions; the quarantine and isolation orders; and the motor-vehicle credential extensions and suspensions; and then, from July 17, 2021, the reinstatements. They are not the residue of a suspension; they are orders limiting commerce, travel and group meetings in force during the calendar quarter. The suspension the 2020 and early-2021 orders caused continued because of those orders, for the period their compelled dismantling took to reverse, and the orders in force in the third quarter of 2021 suspended the operation again on their own terms.