There have been a lot of court losses thus far for Joe Biden’s vaccine mandates, most of them grounded in the absence of statutory authority for rule by executive-agency orders. Today’s example comes from R. Stan Baker, a Trump-appointed district judge in the Southern District of Georgia, who joined the Eastern District of Kentucky in enjoining the mandate on federal contractors. Judge Baker found that the mandate would “have a major impact on the economy at large” and “appears to have vast economic and political significance,” and that under the administration’s “logic and reasoning, the Procurement Act would be construed to give the President the right to impose virtually any kind of requirement on businesses that wish to contract with the Government (and, thereby, on those businesses’ employees) so long as he determines it could lead to a healthier and thus more efficient workforce or it could reduce absenteeism.” Judge Baker’s injunction, in a case brought by the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, applies nationwide, raising again the contentious question of the standing of individual states to pursue, and the power of individual judges to order, nationwide injunctions.
Biden got better news yesterday, as a divided panel of the Eleventh Circuit upheld the mandate for health-care workers in facilities that take Medicare or Medicaid against a challenge filed by the state of Florida. The court divided on lines of party appointment: two Obama appointees, Jill Pryor and Robin Rosenbaum, sided with Biden, while Barbara Lagoa dissented. Judge Lagoa, a Trump appointee previously made a judge by Jeb Bush and elevated to the Florida supreme court by Ron DeSantis, was sometimes discussed as a potential Supreme Court nominee in 2020. The Eleventh Circuit’s ruling conflicts with decisions on the Medicare/Medicaid mandate in Louisiana (which is in the Fifth Circuit) and Missouri (which is in the Eighth Circuit), thus ratcheting up the likelihood of a circuit split that would effectively compel the Supreme Court to hear the case. One ground the Eleventh Circuit majority cited for even hearing the case was that it believed that the court in Louisiana erred in entering a nationwide injunction:
The Louisiana order offers no reason why, as a constitutional, statutory, or practical matter, the interim rule cannot be in effect in some states but not others. Nor could we think of any good reason. Quite simply, this does not appear to be one of those “rare” situations where a nationwide injunction is warranted or even justifiable. For those reasons, it seemed to us an eminently “reasonable expectation” that, at the very least, the nationwide aspect of the Louisiana injunction would be eliminated, and Florida would be subject to the interim rule upon its taking effect on December 6.
The majority concluded — and it may have a better argument in this statutory context than those of some of the other mandates — that
the Secretary has express statutory authority to require facilities voluntarily participating in the Medicare or Medicaid programs to meet health and safety standards to protect patients. Based on this statutory authority, the Secretary was authorized to promulgate the interim rule. In both the Medicare and Medicaid statutes, Congress authorized the Secretary to set standards to protect the health and safety of patients. . . . The regulation reasonably, perhaps necessarily, covers all employees who work at these facilities as a health and safety measure because if any one of them has COVID19 and is present at the facility, she can spread it to the patients, whether directly or indirectly through other employees . . . when it comes to vaccination mandates, there was no reason for Congress to be more specific than authorizing the Secretary to make regulations for the “health and safety” of Medicare and Medicaid recipients. To suggest otherwise would mean that Congress had to have anticipated both the unprecedented COVID-19 pandemic and the unprecedented politicization of the disease to regulate vaccination against it.
Notably, however, the majority drew this conclusion from an analogy to Supreme Court precedent from 1905 upholding state vaccination mandates aimed at the general public:
The federal government’s authority to impose the interim rule’s vaccine requirement derives from the Spending Clause. . . . When a facility, even one operated by a State, voluntarily chooses to participate in the Medicare and Medicaid programs and receives federal funding for services provided to beneficiaries, the facility must comply with the federal law. And, as we explained above, Congress unambiguously conditioned the payment of funds under the Medicare and Medicaid programs to facilities that comply with “health and safety standards” set by the Secretary.
Give me a place to stand, said Archimedes of his lever, and I will move the world. If only he had the federal spending power! Judge Lagoa, in dissent, noted the breadth of the mandate as a reason to question whether the statute really gave the Centers for Medicare and Medicaid Services (CMS) such broad powers: “The mandate applies to a wide range of people including employees, trainees, students, volunteers, and contractors who provide any care, treatment, or other services for the facility.” She also focused on the bypassing of normal procedures without a good cause to invoke an emergency:
The mandate was announced two months before it was issued by CMS, and the mandate itself does not take effect until one month after the issuance date. Moreover, vaccines have been available to healthcare workers for nearly a year before the issuance of the mandate, and the Delta variant has been spreading in the United States for months, yet CMS took no action. Additionally, in the explanation of the mandate, CMS itself concedes that it could have acted earlier—almost a year earlier—but chose not to. . . . And what’s more, CMS has previously issued five interim final rules “to help contain the spread of [COVID-19]” since its onset—none of which included a vaccine mandate. . . . These facts alone cast significant doubt on the agency’s claim of an increased urgency justifying abandoning the notice and comment requirement. Indeed, CMS gave itself more time to issue the mandate after the President announced it was coming than it gave participating facilities to meet its terms. CMS’s own regulation establishes a lack of urgency on its part, either demonstrating that the situation is not so dire as it claims, or that it created the urgency by its own delay. Finally, as the agency concedes, “newly reported COVID-19 cases, hospitalizations, and deaths have begun to trend downward at a national level.”
As I have noted before, the combination of foot-dragging in issuing these mandates with the use of emergency procedures is a self-inflicted wound that may continue to haunt the administration in these cases.