Joe Biden’s effort to use the federal government to mandate the COVID vaccine is not faring very well in the courts. In early November, the Fifth Circuit halted the Occupational Safety and Health Administration’s vaccine mandate almost as soon as it was announced. After hearing briefing and argument, it extended the stay. Now, we have a battery of additional decisions from the federal district courts.
Today, a federal judge in the Eastern District of Kentucky, Gregory van Tatenhove (a George W. Bush appointee), issued an injunction blocking the vaccine mandate for employees of federal-government contractors and subcontractors. The injunction applies throughout three states (Kentucky, Ohio, and Tennessee), the state governments of which were plaintiffs in the case. The court, citing the Fifth Circuit’s opinion in the OSHA case, was unconvinced that the Biden administration had the authority to do this:
While the statute grants to the president great discretion, it strains credulity that Congress intended…a procurement statute to be the basis for promulgating a public health measure such as mandatory vaccination. If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency…Although Congress used its power to delegate procurement authority to the president to promote economy and efficiency federal contracting, this power has its limits…If OSHA promulgating a vaccine mandate runs afoul of the nondelegation doctrine, the Court has serious concerns about the FPASA, which is a procurement statute, being used to promulgate a vaccine mandate for all federal contractors and subcontractors. (Bold added).
Yesterday and today, federal judges in Louisiana and Missouri entered injunctions against vaccine mandates for the staff of 21 types of Medicare and Medicaid health-care providers, enacted by the Centers for Medicare and Medicaid Services (CMS) and planned to go into effect next Monday. Monday’s ruling was by Judge Matthew Schlep of the Eastern District of Missouri (a Trump appointee), and applies to ten states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming), all of which were plaintiffs in the case. Judge Schlep, too, cited the lack of statutory authorization:
While the Court agrees Congress has authorized the Secretary of Health and Human Services…general authority to enact regulations for the “administration” of Medicare and Medicaid and the “health and safety” of recipients, the nature and breadth of the CMS mandate requires clear authorization from Congress—and Congress has provided none…Courts have long required Congress to speak clearly when providing agency authorization if it (1) intends for an agency to exercise powers of vast economic and political significance; (2) if the authority would significantly alter the balance between federal and state power; or (3) if an administrative interpretation of a statute invokes the outer limits of Congress’ power. Any one of those fundamental principles would require clear congressional authorization for this mandate, but here, all three are present… [E]ven if Congress has the power to mandate the vaccine and the authority to delegate such a mandate to CMS—topics on which the Court does not opine today—the lack of congressional intent for this monumental policy decision speaks volumes. (Bold added).
He also noted the long delay in issuing a mandate, which — as in the case of OSHA’s mandate — undercuts the Biden administration’s claim of urgency and its basis for acting in high-handed fashion without full consideration of comments from affected parties:
[T]wo vaccines were authorized under Emergency Use Authorization (“EUA”) more than ten months before the CMS mandate took effect, and one vaccine was fully licensed by the FDA well over two months before…[S]ince the onset of COVID, CMS has issued five…mandates, such as the one here; the most recent on May 13, 2021…One could query how an “emergency” could prompt such a slow response; such delay hardly suggests a situation so dire that CMS may dispense with notice and comment requirements…and the important purposes they serve.
The COVID pandemic is an event beyond CMS’s control, yet it was completely within its control to act earlier than it did…CMS looked only at evidence from interested parties in favor of the mandate, while completely ignoring evidence from interested parties in opposition…In fact, CMS foreclosed these parties’ ability to provide information regarding the mandate’s effects on the healthcare industry, while simultaneously dismissing those concerns based on “insufficient evidence.”…But facts do not cease to exist simply because they are ignored, and stating that a factor was considered is not a substitute for considering it. (Bold added; quotations and citations omitted)
He further observed that “the failure to take and respond to comments feeds into the very vaccine hesitancy CMS acknowledges is so daunting” and found it irrational that “CMS rejected mandate alternatives in those with natural immunity by a previous coronavirus infection.” Should judges be flyspecking the reasoning of administrative agencies? Maybe if they stuck to ordering things they clearly had the power to order, that would be a fairer question.
Finally, today, Judge Terry Doughty of the Western District of Louisiana (a Trump appointee) enjoined the CMS mandate in the other 40 states. The nationwide scope of his injunction is more debatable, although fourteen states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio) were before the court as plaintiffs, and the ruling is clearly properly tailored to the parties to the case. Judge Doughty is in the Fifth Circuit, so he felt himself bound by the similarity of the CMS mandate to the OSHA mandate. He was similarly critical of the process:
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.
He was also unpersuaded that CMS had the authority to issue such far-reaching rules without anything resembling a specific authorization from Congress:
None of these statutes give the Government Defendants the “superpowers” they claim. 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…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. 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. (Bold added).
We have a government of enumerated powers. Congress is supposed to make laws that are to be executed in enumerated ways. Assuming that it has such an extraordinary power as mandating that Americans take a vaccine, it should either pass a law to exercise that power, or at least pass a law that unambiguously delegates to the executive branch the decision when to exercise it. What we have seen instead is the Biden administration scouring the books for any law – no matter how general or how unrelated to the topic – that seems vague enough to cover the situation. We will see in the end how the Supreme Court resolves these issues, as it inevitably will. But we still have only one legislative branch, and it is not run by the president.
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