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.

https://arstechnica.com/?p=1817233