The Biden administration keeps stacking up legal defeats over COVID-19 vaccine mandates. Just last week there was two major defeats in court and another one was announced this weekend when the 6th Circuit of Appeals denied the administration’s request for a change in location for a case.
On Thursday, the Department of Health and Human Services (HHS) Centers for Medicare & Medicaid Services (CMS) announced it was suspending enforcement of Biden’s vaccine mandate because the United States District Court for the Eastern District of Missouri and the United States District Court for the Western District of Louisiana issued preliminary injunctions against it. This is the mandate that Medicare-and-Medicaid-certified providers and suppliers be vaccinated. The memo states, “Between the two of them, these injunctions cover all states, the District of Columbia and the U.S. Territories.”
CMS released a statement after the defeat.
Survey and Enforcement of the Vaccine Requirement for Health Care Staff in Medicare- and Medicaid-certified Providers and Suppliers Suspended While Court Ordered Injunctions are in Effect: The Centers for Medicare & Medicaid Services (CMS) will not enforce the new rule regarding vaccination of health care workers or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers (including nursing facilities, hospitals, dialysis facilities and all other provider types covered by the rule) while there are court-ordered injunctions in place prohibiting enforcement of this provision.
“While CMS remains confident in its authority to protect the health and safety of patients in facilities certified by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation,” the memo continued. “Accordingly, while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule.”
Louisiana Western District U.S. Judge Terry Doughty saw it as a separation of powers violation by the administration. He wrote that “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.”
A second ruling was announced last week from Kentucky. A district court judge blocked the administration’s mandate requiring government contractors to get vaccinated. This ruling applies to three states – Kentucky, Ohio, and Tennessee
In November, the administration was scolded by the 5th Circuit of Appeals for its attempt to workaround Congress with its vaccine mandates. The stay on the federal mandate that companies with 100 or more employees enforce a requirement for COVID-19 vaccinations remained in place.
On Friday night, the 6th Circuit of Appeals denied a motion requested by the Biden administration to move the location of the OSHA vaccine mandate case. OSHA is the government agency tasked with enforcing the mandates when or if they fully take effect. The administration was hoping for a more liberal-leaning court to rule on the case. It affects about 85 million employees.
According to court documents filed on Friday, the 6th circuit denied the motion to move the case to the circuit in Washington D.C. In addition the court released a timeline for each side to file their arguments with the final filing date of December 10th. The federal vaccine mandate was set to go into effect on January 4th.
So, by the unusual method of choosing a ping pong ball in a lottery drawing, the 6th Circuit will handle the case. The 6th Circuit Court of Appeals is described in the press as a conservative-leaning one, with more judges appointed by Republican presidents than Democrat presidents. The circuit court in D.C. leans liberal, which is why the administration wanted a change in location. The 6th Circuit Court of Appeals will decide about the sweeping mandate aimed at companies with 100 or more employees.
Liberals are feeling the pain of so many Trump-appointed judges. Poor old Sleepy Joe is a victim, you see, of the Trump administration’s focus in filling vacant seats on the bench.
The developments underscore the impact of the conservative-tilted federal bench, which was drastically molded by former President Trump in his tenure. Biden has hit the ground running trying to put his own mark on the bench, but legal experts say it will take years for the breadth of Biden’s own progress to be seen and his success in transforming the court depends on Democrats holding the Senate in 2022.
“It’s the bitter fruit of Trump,” said Carl Tobias, a University of Richmond law professor with expertise in federal courts. “This is where you are when Trump appointed almost a third of the federal appellate bench. This is what you’re going to see for some time.”
What’s an authoritarian Democrat besotted with presidential power and acting as though he has a mandate to “transform” America to do? With any luck, Joe Biden will continue to lose in court over his grab for power. There is no history of federal mandates for vaccines for the civilian population. The military delivers mandatory vaccinations to service members but for civilians, traditionally it has been the states that have mandated some vaccinations. For example, back in earlier times in our country’s history, smallpox vaccinations were required in Massachusetts in a 1901 outbreak of that disease. We know that there are state requirements for vaccinations for school enrollments. Eventually, it is generally expected that the Supreme Court will have to rule on the constitutional legality of COVID vaccine requirements. The conservative majority on SCOTUS that liberals fear so much hasn’t always panned out in favor of conservative rulings, though. We’ll just have to wait and see how it all plays out.