During the past two weeks, more courts across the United States have blocked enforcement of the current Biden administration’s COVID-19 vaccine mandates. On Nov. 30, 2021, in a 34-page ruling, a U.S. District Court judge in Monroe, Louisiana issued a temporary injunction pending resolution of the legal challenge by 14 state attorney generals to the federal COVID vaccine mandate that applies to nearly every full and part-time employee, volunteer and contractor working in health care facilities receiving Medicaid or Medicare funding. Judge Terry Doughty’s decision applied to health care workers in every state in the country except in 10 states where it had already been blocked by a U.S. court.1 2
Judge Doughty ruled that the Biden administration does not have the constitutional authority to issue the vaccine mandate. He said:
If the executive branch is allowed to usurp the power of the legislative branch to make laws, two of the three powers conferred by our Constitution would be in the same hands,” he wrote. “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.3
U.S. Circuit Courts Rule Federal Government Does Not Have Constitutional Authority to Mandate a Vaccine
The Louisiana court looked towards the recent U.S. Fifth Circuit Court decision that halted the COVID vaccine mandate issued by the federal Occupational Safety and Hazards Administration (OSHA), finding similarities between the two mandates issued by federal agencies. The court granted a preliminary injunction to the plaintiffs finding that the Centers for Medicare & Medicaid Services (CMS) lacked the constitutional authority to mandate a vaccine for 10.3 million health care workers, 2.4 million of whom are unvaccinated.4 5
Judge Doughty concluded that the Executive branch and CMS exceeded its authority and wrote:
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 statue.6
The court took issue with the fact that CMS did not undergo the usual public notice and comment period when enacting the COVID vaccine mandate claiming that the urgency of the COVID pandemic prevented them from taking the time for public review and comment. However, it took CMS two months to prepare the interim final rule, which is a longer period of time than it would have been if public comments and opinions had been permitted.7
Federal Agency Rejected All Proposed Alternatives to the COVID Vaccine Mandate
Agreeing with the plaintiffs that the mandate was “arbitrary and capricious,” Judge Doughty noted that CMS rejected all proposed alternatives to the COVID vaccine mandate, such as weekly testing, wearing a mask, and natural immunity without providing any evidence as to why these alternatives were rejected. In contrast, the plaintiffs presented a number of studies showing that natural immunity provides the same or better protection against the virus than the COVID vaccine does. Judge Doughty pondered, “The rejection of natural immunity as an alternative is puzzling.”8
The U.S. District Court judge found that healthcare workers would suffer “irreparable injury” having to choose between getting a vaccine or losing their job, while health care facilities would be unnecessarily “burdened” by tracking and enforcing the mass vaccination mandate or lose federal funds.9 According to Judge Doughty:
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.10
U.S. District Court in Missouri: COVID Vaccine Mandate Is “Arbitrary and Capricious”
A similar ruling in the Eastern District of Missouri halted the COVID vaccine mandate for healthcare workers in Missouri and nine other states. U.S. District Judge Matthew Schlep granted a temporary injunction against the vaccine mandate pending full judicial review. The court found that the threat of irreparable harm to healthcare workers outweighed the impact of halting the vaccine mandate, along with the plaintiff’s probability of success on the merits, and the public’s interest in the matter weighed in favor of granting a temporary injunction.11
The court held that the plaintiffs would likely succeed in their argument that CMS does not have the constitutional authority to enact such a sweeping mandate on its own and that CMS failed to get the necessary approval from Congress for a mandate that has, “vast economic and political significance” and was issued without the standard public comment period.12 13 Judge Schlep wrote…
Truly, the impact of this mandate reaches far beyond COVID. CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism.
Judge Schlep further pointed out that CMS, “lacks evidence showing that vaccination status has a direct impact on spreading COVID” in health care facilities rendering the mandate, “arbitrary and capricious.”14 The order emphasized that the absence of data showing that vaccination decreases transmission of the virus was concerning and that CMS admits, “the effectiveness of the vaccine[s] to prevent disease transmission by those vaccinated [is] not currently known.” Judge Schlep continued…
No one questions that protecting patients and health care workers from contracting COVID is a laudable objective. But the court cannot, in good faith, allow CMS to enact in an unprecedented mandate that lacks a ‘rational connection between the facts found and the choice made.’15
The injunction will bar health care workers from forced vaccination in ten states, Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire.16
U.S. District Court for the Eastern District of Kentucky Blocks Vaccine Mandate for Federal Contractors
A U.S. District Court in Frankfort, Kentucky temporarily halted the enforcement of a new federal regulation requiring that new government contracts have a clause requiring that employees of all federal contractors receive COVID vaccinations. Judge Gregory Van Tatenhove’s order, which is the first to find against federal contractor COVID vaccine mandates, will block the enforcement of the regulation in Kentucky, Ohio and Tennessee.17
In September, guidance was issued requiring all covered full or part-time federal contractors to be fully vaccinated by Dec. 8, 2021. Plaintiffs and the Commonwealth of Kentucky filed suit against President Joe Biden, alleging the mandate was, “contrary to procedure, arbitrary and capricious, and violated the U.S. Constitution.” Tennessee and Ohio later joined the suit.18
Federal contracts are big business. One-fifth of the U.S. workforce are federal contractors. In Kentucky alone, $9.3 billion was given to 32,465 government contractors in fiscal year 2021.19
Federal Government Has Overstepped Its Bounds in Legal Authority Reserved for the States
The court agreed with the plaintiffs that the Biden administration lacked the authority to issue the COVID vaccine mandate and that the mandate violated the U.S. Constitution. The order implies that the federal government overstepped its bounds, pointing out that the COVID vaccine mandate applies to contractors and subcontractors who work entirely from home and present zero risk of spreading the virus to their co-workers. The court pondered the future possibility that there is nothing to stop a federal mandate against hiring workers who have a higher than average BMI for the sake of the economy, as the CDC warns that COVID outcomes are worse for people who are obese.20
The court agreed with the plaintiffs that the defendant’s mandate exceeds the power of the executive branch and encroaching on an area of law that is traditionally reserved to the states.21 Judge Van Tatenhove summarized the issue…
The question presented here is narrow. Can the president 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.22
With the number of courts issuing temporary injunctions halting the Biden administration’s COVID vaccine mandates, many workers across the country have a reprieve from forced use of COVID vaccine pending final court decisions, including potentially at the U.S. Supreme Court level.
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1 Hales T. Courts block two Biden administration COVID vaccine mandates. Reuters Dec 1. 2021.
2 Zanotw E. Judge extends block of Biden vaccine mandate for health workers nationwide. The Washington Times Nov. 30, 2021.
3 Brown J. Louisiana federal judge blocks Biden vaccine mandate for health care workers nationwide. Fox News Nov. 30, 2021.
4 State of Louisiana et al. vs. Xavier Becerra et al. 3:21-CV-03970. Document 28. Nov. 30, 2021.
6 Lungariello M. Federal judge blocks Biden’s national vaccine mandate for health-care workers. New York Post Nov. 30, 2021.
7 State of Louisiana et al. vs. Xavier Becerra et al. 3:21-CV-03970. Document 28. Nov. 30, 2021.
9 Zanotw E. Judge extends block of Biden vaccine mandate for health workers nationwide. The Washington Times. Nov. 30, 2021.
10 Lungariello, M. Federal judge blocks Biden’s national vaccine mandate for health-care workers. New York Post. Nov. 30, 2021.
11 State of Missouri v. Joseph R. Biden, Jr. 4:21-cv-01329-MTS Doc. #: 28 Nov. 29, 2021.
12 Bacharier G. Federal judge blocks Biden vaccine mandate for health care workers in Missouri, 9 other states. Yahoo! News Nov. 30, 2021.
13 State of Missouri v. Joseph R. Biden, Jr. 4:21-cv-01329-MTS Doc. #: 28 Nov. 29, 2021.
14 See Bacharier G. Federal judge blocks Biden vaccine mandate for health care workers in Missouri, 9 other states. Yahoo! News Nov. 30, 2021.
17 Hales T. Courts block two Biden administration COVID vaccine mandates. Reuters Dec 1. 2021.
18 Commonwealth of Kentucky vs. Joseph R. Biden. 3:21-cv-00055-GFVT. Document 50. Nov. 30, 2021.
19 Federal District Court Halts Vaccine Mandate for Federal Contractors, Rules in Favor of Kentucky, Ohio, and Tennessee. Kentucky.gov.
20 Commonwealth of Kentucky vs. Joseph R. Biden. 3:21-cv-00055-GFVT. Document 50. Nov. 30, 2021.
22 Vaccine mandate for federal contractors blocked in 3 states. The Associated Press Nov. 30, 2021.