Judge blocks Biden vaccine rule, citing “liberty interests of the unvaccinated”

A federal judge yesterday blocked a Biden administration COVID-19 vaccine mandate for health care workers, granting a request for preliminary injunction filed by Republican attorneys general from 14 states. US District Judge Terry Doughty ruled that the government lacks authority to implement the rule that "requires the staff of twenty-one types of Medicare and Medicaid healthcare providers to receive one vaccine by December 6, 2021, and to receive the second vaccine by January 4, 2022." Providers that don't comply face penalties, including "termination of the Medicare/Medicaid Provider Agreement." The Centers for Medicare and Medicaid Services (CMS) mandate regulates over 10.3 million health care workers in the US, of which 2.4 million are unvaccinated. The Biden vaccine rule is being challenged by the attorneys general from Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio. The Republican AGs' lawsuit was filed against CMS and the US Department of Health and Human Services. The preliminary injunction they won applies nationwide except for 10 states that "are already under a preliminary injunction order dated November 29, 2021, issued by the Eastern District of Missouri," a court order said. Those states are Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, and South Dakota.

“Liberty interests of the unvaccinated”

Doughty's order can be challenged in the US Court of Appeals for the Fifth Circuit, which already ruled against the US in a similar case. It could eventually reach the Supreme Court. If no higher court overturns the preliminary injunction, it will remain in effect until the states' lawsuit against the Biden administration is fully resolved. Doughty wrote in his conclusion:

If the separation of powers meant anything to the Constitutional framers, it meant that the three necessary ingredients to deprive a person of liberty or property—the power to make rules, to enforce them, and to judge their violations—could never fall into the same hands. If the Executive branch is allowed to usurp the power of the Legislative branch to make laws, two of the three powers conferred by the Constitution would be in the same hands. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency. During a pandemic such as this one, it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties... This matter will ultimately be decided by a higher court than this one. However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.

Doughty "considered limiting the injunction to the fourteen Plaintiff States" but decided to make it nationwide because "there are unvaccinated healthcare workers in other states who also need protection."

Biden contractor rule also blocked

In a different ruling yesterday, a judge granted a preliminary injunction preventing the Biden administration from "enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee." That ruling was issued by Judge Gregory Van Tatenhove of the US District Court for the Eastern District of Kentucky. Van Tatenhove wrote that vaccines are effective and that the government can "in some circumstances" require citizens to be vaccinated. But the question in the case is narrow, asking whether the president can "use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors... In all likelihood, the answer to that question is no."

Judge cites recent ruling against OSHA

Doughty cited a November 12 decision from the Fifth Circuit appeals court, which issued a stay preventing the Occupational Safety and Health Administration (OSHA) from enforcing a mandate that "required employees of covered employers to undergo a COVID-19 vaccination or to take weekly COVID-19 tests and wear a mask." The appeals court "stayed the OSHA Mandate because of perceived grave statutory and Constitutional issues pending briefing and an expedited judicial review," and many of the issues in that case "are similar to the issues here included in the CMS Mandate," Doughty wrote. The appeals court found "that the OSHA Mandate exceeded the federal government's authority under the Commerce Clause because it regulated noneconomic inactivity (person's choice to remain unvaccinated) that falls squarely within the State's police power" and "that separation of powers principles ('the major questions doctrine') casts doubt over the OSHA Mandate's assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation," Doughty's ruling noted. "Additionally, the Court found 'irreparable harm' to the petitioners' liberty interests of having to choose between their jobs and the vaccine," Doughty wrote.

Judge: Even Congress may not be able to mandate vaccines

The CMS claimed authority to issue the mandate from Social Security Act provisions, including one that lets the agency's secretary "prescribe such regulations as may be necessary to carry out the administration of the insurance programs under this subchapter." "None of these statutes give the Government Defendants the 'superpowers' they claim," Doughty wrote. "Not only do the statutes not specify such superpowers, but principles of separation of powers weigh heavily against such powerful authority being transferred to a government agency by general authority." Doughty wrote that even Congress may not have authority to issue this mandate:

There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency. It is not clear that even an Act of Congress mandating a vaccine would be constitutional. Certainly, CMS does not have this authority by a general authorization statute.

“Irreparable injury” to states

Doughty also wrote that "Plaintiff States make a strong case that the CMS Mandate violates the States' police power." Doughty further cited the "Non-Delegation Doctrine," which provides that "Congress lacks the authority to delegate 'unfiltered power' over the American economy to an executive agency." "This is a similar doctrine to the Major Questions Doctrine, but if the Government Defendants have the power and authority they claim (to mandate vaccines for 10.3 million workers), these government agencies would have almost 'unfiltered power' over any healthcare provider, supplier, and employees that are covered by the CMS Mandate," he wrote. "If CMS has the authority by a general authorization statute to mandate vaccines, they have authority to do almost anything they believe necessary, holding the hammer of termination of the Medicare/Medicaid Provider Agreement over healthcare facilities and suppliers." Obtaining a preliminary injunction requires plaintiffs to prove "irreparable injury" from enforcement of the rule. Doughty wrote:

The Plaintiff States will suffer irreparable injury by not being able to enforce their laws which have been preempted by the CMS Mandate, by incurring the increased cost of training and of enforcing the CMS Mandate, and by having their police power encroached. The Plaintiff States' citizens will suffer irreparable injury by having a substantial burden placed on their liberty interests because they will have to choose between losing their jobs or taking the vaccine. Additionally, the health care facilities and suppliers will be burdened with the task of tracking and enforcing the mandate or else face the loss of Medicare and Medicaid funding.

Infections in vaccinated people As part of his decision that the CMS rule is arbitrary and capricious, the judge noted that vaccinated people can still be infected with COVID-19, particularly by the delta variant. In September, we wrote about evidence that "COVID-19 vaccines are largely holding up against the hyper-transmissible delta coronavirus variant, particularly when it comes to preventing severe disease and death." Doughty also agreed with states that natural immunity from prior infections should have been considered sufficient. We explained in another article that protection from vaccines is superior to that provided by prior infections, but Doughty wrote that mandatory vaccines "make no sense" for people who were previously infected:

The Plaintiff States further argue that CMS failed to adequately explain its departure from its prior position of not requiring mandatory vaccines. An agency must provide a more detailed justification when a new policy rests upon factual findings that contradict those which underlay its prior policy. Although CMS spent pages and pages attempting to explain the need for mandatory COVID-19 vaccines, when infection and hospitalization rates are dropping, millions of people have already been infected, developing some form of natural immunity, and when people who have been fully vaccinated still become infected, mandatory vaccines as the only method of prevention make no sense.

“Flagrantly pretextual”

Doughty agreed with nearly all of the plaintiff states' arguments. For example, he wrote that the government did not comply with a requirement to conduct a regulatory impact analysis for rural hospitals or a provision of the Social Security Act that "requires the Secretary to consult with appropriate state agencies relating to conditions of participation by providers of services." Doughty also agreed with the plaintiff states that Social Security Act "provisions prohibit the dictation of the hiring and firing policies of these institutions for unvaccinated workers. The statute also prohibits supervision and control over both the 'selection' and 'tenure' of unvaccinated employees." Doughty agreed with states that the agency's "rationale is flagrantly pretextual" because it "was enacted as a result of President Biden's September 9, 2021, declaration of his intention to impose a national CMS Mandate." Doughty also agreed with state attorneys general that the CMS was required to seek public comment before issuing the rule covering 10.3 million health care workers, writing:

It took CMS almost two months, from September 9, 2021, to November 5, 2021, to prepare the interim final rule at issue. Evidently, the situation was not so urgent that notice and comment were not required. It took CMS longer to prepare the interim final rule without notice than it would have taken to comply with the notice and comment requirement. Notice and comment would have allowed others to comment upon the need for such drastic action before its implementation.