President Joe Biden delivers remarks on the Omicron COVID-19 variant following a meeting with his COVID-19 response team at the White House on November 29, 2021. (Photo by Anna Moneymaker/Getty Images.)
Citing the “liberty interests of the unvaccinated,” a federal judge in the Western District of Louisiana issued a nationwide order Tuesday against efforts by the administration of President Joe Biden to require health care workers nationwide to receive a vaccine against the novel coronavirus.
Judge Terry A. Doughty, a Donald Trump appointee, enjoined the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services, “along with their directors, employees, Administrators and Secretaries,” from implementing the Nov. 5, 2021 mandate “as to all healthcare providers, suppliers, owners, employees, and all others covered” by the mandate. According to its summary, the Biden Administration’s mandate required “Medicare- and Medicaid-certified providers and suppliers” — in other words, entities and people who interact financially with the federal government — to generally require COVID-19 vaccinations “to help protect the health and safety of residents, clients, patients, PACE participants, and staff” if they wish to continue to “participate in the Medicare and Medicaid programs.”
Doughty also ordered “that the scope of this injunction shall be nationwide, except for the states of Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, South Dakota, since these ten states are already under a preliminary injunction order dated November 29, 2021, issued by [another judge in] the Eastern District of Missouri.”
The Missouri case is already being appealed.
The vaccine mandate went into effect as an emergency rule — without the standard “notice and comment” rulemaking generally contemplated by the Administrative Procedure Act.
The attorneys general of a plethora of states were led by the State of Louisiana in challenging the mandate.
“Defendants have acted without statutory authority, violated the Administrative Procedure Act, violated the Social Security Act, violated the Congressional Review Act, and violated the Constitution by promulgating and implementing” the mandate, the plaintiff states alleged.
In a 34-page memorandum explaining the order, Judge Doughty recapped the size and scope of the mandate (citations omitted):
The CMS Mandate 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. Failure to comply with the CMS Mandate may result in penalties up to and including “termination of the Medicare/Medicaid Provider Agreement.”According to the CMS, the CMS Mandate regulates over 10.3 million health care workers in the United States. Of those 10.3 million, 2.4 million healthcare workers are currently unvaccinated.
The beginning of the memorandum reads as an explainer about how judges do their work — as if Doughty sensed the opinion might attract considerable attention from people who do not frequently read judicial opinions.
“The opinion expressed hereto is legal, not political or personal,” Doughty wrote in a separate 34-page memorandum.
The judge did ding Biden, though, for a policy flip-flop
“President-Elect Biden initially did not think vaccines should be mandatory,” Doughty wrote. “On September 9, 2021, President Biden changed his mind announcing his intention to impose a national mandate. Both the OSHA Mandate and the CMS Mandate were imposed approximately two months later.”
After agreeing that the plaintiff states had standing to sue, Doughty favorably cited the Fifth Circuit’s recent decision to block the enforcement of a workplace vaccination or frequent COVID testing requirement in workplaces covered by OSHA. He then slammed the way the mandate was adopted:
After reviewing the reasons listed by CMS for bypassing the notice and comment requirement, the Court finds Plaintiff States are likely to succeed on the merits on this claim. 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.
Doughty then framed the issue as one of basic constitutional law: he said Congress has the power to write the laws and that the president (through executive branch agencies) has the power to enforce the laws. He said that while Congress has delegated the fine points of administrative procedure to various agencies, the COVID vaccine fell under a slightly different legal heading: the size and scope of the mandate required him to apply the so-called “major questions doctrine.” That doctrine “requires that Congress must speak clearly if it wishes to assign to an agency, decisions of vast economic and political significance” (internal quotations omitted).
“This is exactly what has occurred in this case,” Doughty said. “Government Defendants have used general authority statutes to mandate COVID-19 vaccines for over 10.3 million healthcare workers. Certainly, this is a decision of vast economic and political significance.”
In other words, a congressional grant of “general authority” to govern Medicaid, Medicare, and other social benefit program does not give federal agencies the power to enforce a vaccine 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,” Doughty continued.
But that sentence was not meant to be a suggestion that Congress could act, either.
“It is not clear that even an Act of Congress mandating a vaccine would be constitutional,” he said.
Doughty also said that because the mandate would result in millions of healthcare workers being fired or quitting their jobs, the Biden administration did not engage in the sort of “reasoned decision-making” required by the Administrative Procedure Act.
“Requiring COVID-19 vaccinations to healthcare workers covered by the mandate would hurt the patients the Social Security Act was meant to help,” Doughty said, because so many people would quit that facilities would be left unstaffed or perhaps even forced to close.
Doughty also found it “puzzling” that the Biden Administrative summarily rejected the notion of “natural immunity” to COVID by those who have been previously infected. According to the mandate itself, as quoted by Doughty:
While a significant number of healthcare staff have been infected with SARS-Co-V2, evidence indicates their infection-induced immunity, also called “natural immunity” is not equivalent to receiving the COVID-19 vaccine.
The judge responded:
The “evidence” CMS relied upon in rejecting that alternative is not provided. The Declaration of Dr. Jay Bhattachary, Director of Stanford University’s Center for Demography and Economics of Health and Aging disputes CMS’s assertion that natural immunity is not equivalent to receiving a COVID-19 vaccine. Citing studies from Qatar (which tracked 927,321 individuals for six months after COVID-19 vaccinations), California (which tracked the infection rates from over 5 million patients vaccinated with two Pfizer doses), and U.S. Veterans (which tracked 620,000 vaccinated U.S. Veterans), Plaintiff States assert these studies overwhelmingly conclude that natural immunity provides equivalent or greater protection against severe infection than immunity generated by COVID-19 vaccines.
Doughty then wondered why the mandate did not require booster shots:
The CMS Mandate does not yet require boosters to the COVID-19 vaccines. However, the CDC recently recommended boosters. If boosters are needed six months after being “fully vaccinated,” then how good are the COVID-19 vaccines, and why is it necessary to mandate them?
Citing an expert put forth by the various states which sued, the judge then questioned why the government would seek to require vaccines that “do not prevent transmission of the disease among the vaccinated or mixed vaccinated/unvaccinated populations,” especially when “additional treatment with other drugs and supplements has resulted in an 85% reduction in hospitalizations and death of high-risk individuals.”
“[E]ven if you are fully vaccinated, you still may become infected with the COVID-19 virus,” Doughty wrote, again citing an expert promulgated by the states.
The judge did not discuss studies which indicate that vaccination helps an individual’s immune system react more quickly and therefore to clear the virus more quickly than the immune system of an unvaccinated individual — thus reducing transmission because the virus is defeated faster in vaccinated individuals whose immune systems recognize the virus and mount a quick attack.
The judge continued by suggesting that the virus was going away:
Although CMS spent pages and pages attempting to explain the need for mandatory COVID-19 vaccines, when infection and hospitalizations 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.
Elsewhere, Doughty indicated that the mandate was “arbitrary and capricious” because it was issued the same day Biden “declar[ed] his intention to impose a national . . . mandate.”
“The presence of pretext is enough to render a rule arbitrary and capricious,” the judge said.
Considerable portions of the opinion turn to address state’s rights and the interests states have in administering the federal programs which attempted to promulgate the mandate.
The judge concluded by saying the need to preserve the status quo was important (citations omitted):
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. Because the Plaintiff States have satisfied all four elements required for a preliminary injunction to issue, this Court has determined that a preliminary injunction should issue against the Government Defendants.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.
Read the order and the memorandum below; Law&Crime has combined them into one document:
[Image of Biden via Chip Somodevilla/Getty Images]