Joe Biden’s strategy of attacking the pandemic through vaccine mandates looks as well-thought out as, well … almost all of his strategies. Biden lost in federal court again yesterday, this time on Biden’s order that all health-care workers in facilities that receive Medicare or Medicaid funds be vaccinated. Ten states challenged the order on the basis of a lack of authority, but Judge Matthew Schelp went further in imposing an injunction against it:

The Biden administration issued the vaccine mandate, for health-care workers at facilities that received funding from Medicare and Medicaid, in early November through the Centers for Medicare and Medicaid Services (CMS). It was estimated to apply to some 1.7 million workers at 76,000 facilities across the country, including hospitals and nursing homes.

But in a 32-page ruling issued on Monday in St. Louis, U.S. District Judge Matthew T. Schelp, who was appointed by President Donald Trump, said that a preliminary injunction to halt the rule was warranted because he believed the arguments made by the plaintiffs — 10 mostly Republican-dominated states — that the CMS lacked authority to implement the requirement, probably had merit.

He also questioned whether there was enough data about transmissibility and vaccination status, and he said that he believed the order was probably “arbitrary and capricious.”

“Congress did not clearly authorize CMS to enact this politically and economically vast, federalism-altering, and boundary-pushing mandate, which Supreme Court precedent requires,” he wrote.

The order will halt the CMS vaccine mandate in the 10 states that brought the lawsuit until the court can hear their legal challenges. They are: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.

The ruling itself covers a lot more ground than simple statutory requirements, as this excerpt indicates. At 32 pages, it’s a bit of a slog, but Schelp makes some important legal and medical points within it. First, the statute under which CMS operates doesn’t grant any such authority to the executive branch, which is one basis for Schelp’s decision, but the mandate also creates costs that Congress never authorized the executive branch to pay either:

First, Congress must “speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’” Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (quoting Util. Air Reg., 573 U.S. at 324). The mandate’s economic cost is overwhelming. CMS estimates that compliance with the Mandate—just in the first year—is around 1.38 billion dollars. 86 Fed. Reg. at 61,613. Those costs, though, do not take into account the economic significance this mandate has from the effects on facilities closing or limiting services and a significant exodus of employees that choose not to receive a vaccination.6 Likewise, the political significance of a mandatory coronavirus vaccine is hard to understate, especially when forced by the heavy hand of the federal government. Indeed, it would be difficult to identify many other issues that currently have more political significance at this time. Had Congress wished to assign this question fraught with deep economic and political significance to CMS, “it surely would have done so expressly.” See King v. Burwell, 576 U.S. 473, 486 (2015). “It is especially unlikely that Congress would have delegated this decision to [CMS], which has no expertise in crafting” vaccine mandates.

The lack of congressional action to support CMS’ promulgation of vaccine mandates also creates a fatal flaw within this policy. Supreme Court precedent requires explicit congressional action when agencies try to “significantly alter the balance between federal and state power” (Alabama Association of Realtors, the eviction-moratorium case from August, citing United States Forest Service v. Cowpasture River Preservation Assn from 2020). Just as in the Alabama case on eviction moratoria, this mandate completely distorts state sovereignty:

While the Court agrees Congress has authorized the Secretary of Health and Human Services (the “Secretary”) 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 Congressed has provided none. 5 See Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2486 (2021) (“It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened.”). 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. …

The regulation at issue alters that balance because it requires vaccination, which CMS has never attempted to do, for millions of individuals who would otherwise be outside the reach of the federal government. This concern is “heightened” since CMS’s “administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.” Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 173 (2001). It has long been the states’ power to legislate health—including vaccination

Schelp continues on at length about the requirement for explicit congressional authorization for these measures, even in an emergency — which the COVID-19 pandemic ceased being well over a year ago. It’s not up to the court to “infer congressional intent,” Schelp writes, which makes even more sense when considering that Congress has had parts of two sessions which have worked extensively already on pandemic-related matters (a point Schelp doesn’t raise himself). Schelp sounds skeptical that even a congressional authorization for such a mandate would withstand constitutional scrutiny, but its absence makes the question very easy.

After a due nod to CMS’ failure to abide by the Administrative Procedure Act — another good reason to bounce new regulation — Schelp goes after the mandate itself. It’s “arbitrary and capricious,” he writes, because CMS hasn’t provided any proof that vaccination actually stops transmission:

CMS lacks evidence showing that vaccination status has a direct impact on spreading COVID in the mandate’s covered healthcare facilities. CMS acknowledges its lack of “comprehensive data” on this matter but attempts to “extrapolate” the abundant data that it does have on Long Term Care Facilities (“LTCs”), generally referred to as nursing homes, to the other dozen-plus Medicare and Medicaid facilities covered by the mandate. 86 Fed. Reg. at 61,585. However, CMS’s path of analysis appears misguided and the inferences it produced are questionable. …

In general, the overwhelming lack of evidence likely shows CMS had insufficient evidence to mandate vaccination on the wide range of facilities that it did. Looking even beyond the evidence deficiencies relating to the specific facilities covered, the lack of data regarding vaccination status and transmissibility—in general—is concerning. Indeed, CMS states that “the effectiveness of the vaccine[s] to prevent disease transmission by those vaccinated [is] not currently known.”17 86 Fed. Reg. at 61,615.18 CMS also admits that the continued efficacy of the vaccine is uncertain. See, e.g., id. at 61,612 (“[M]ajor uncertainties remain as to the future course of the pandemic, including but not limited to vaccine effectiveness in preventing ‘breakthrough’ disease transmission from those vaccinated, [and] the long-term effectiveness of vaccination[.]”). No one questions that protecting patients and healthcare workers from contracting COVID is a laudable objective. But the Court cannot, in good faith, allow CMS to enact an unprecedented mandate that lacks a “rational connection between the facts found and the choice made.”

We know that vaccination works to prevent severe infections and curtail hospitalizations and deaths. That much is evident from the data on hand, and is the best reason to vaccinate. However, the breakthrough cases seen and transmission patterns among the vaccinated suggest that vaccination won’t guarantee the outcome this mandate seeks, which is zero transmission in CMS-funded facilities. Nor did CMS account for naturally acquired immunity, which appears to provide at least a similar level of protection for those who have recovered from a COVID-19 infection:

As another example, CMS rejected20 mandate alternatives in those with natural immunity by a previous coronavirus infection. 86 Fed. Reg. at 61,614 (noting “many uncertainties” about the immunity in those previously infected “compared to people who are vaccinated”). But, elsewhere, it plainly contradicts itself regarding the value of natural immunity. Id. at 61,604 (“[A]bout 100,000 a day have recovered from infection . . . . These changes reduce the risk to both health care staff and patients substantially, likely by about 20 million persons a month who are no longer sources of future infections.”) (emphasis added). Such contradictions are tell-tale signs of unlawful agency actions.

In total, Schelp’s ruling provides a very broad platform that appellate courts might find difficult to overturn, if not impossible. Schelp clearly did his homework in this case, and the cites of recent Supreme Court decisions on federalism likely make this decision bulletproof — especially after Alabama Association of Realtors. 

That means the White House has to come up with another plan for its pandemic strategy other than unconstitutional mandates. Perhaps at this point a better set of incentives for vaccination might work — tax breaks, maybe? — but those will have to go through Congress as well. That of course raises the question as to why Biden didn’t go to Congress in the first place to hammer out an incentive plan for full vaccination instead of defaulting to authoritarianism. Maybe the media will ask that question, but I’m not holding my breath on that one.