Shortly following the Fifth Circuit blocking the private employer mandate from the Occupational Safety and Health Administration (OSHA), Judge Matthew Schelp of the Eastern District of Missouri issued a preliminary injunction prohibiting the federal government from enforcing the Medicare/Medicaid vaccine mandate in the 10 states that sued.
The Biden administration appears to acknowledge that it cannot directly require people to get vaccinated. But rather than leaving the question to the states, as the Constitution intended, the administration is trying to force those it can regulate to coerce third parties to be vaccinated. The OSHA mandate attempts to use federal workplace safety regulation to force private employers to require workers to get vaccinated. The mandate that was just blocked by Judge Schelp was directed at all health care facilities that accept Medicare or Medicaid.
Most of the health care industry accepts Medicare or Medicaid; for example, 90 percent of primary care physicians accept Medicare and 67 percent accept Medicaid. The Medicare/Medicaid vaccine mandate applied to nearly every employee, volunteer, and third-party contractor working at any health care facility, even those with no patient contact.
The federal government was thus trying to use the reliance of most health care institutions like hospitals upon Medicare or Medicaid to coerce anyone even remotely connected to the health care industry to get vaccinated. Centers for Medicare and Medicaid Services (CMS) gave as an example a construction crew that might enter a hospital just to use its bathrooms on their break as falling within the mandate.
This mandate didn’t have the constitutional problems that I had previously raised, and that formed part of the Fifth Circuit’s reasoning in blocking the OSHA rule. This is due to the Supreme Court’s vast expansion of the federal power to spend from the original understanding—only spending on the enumerated powers—to anything Congress believed to be within the “general welfare” in United States v. Butler (1936). (Oddly enough, the Court held the act in question to be unconstitutional while doing this.) As Medicare and Medicaid ares based upon the spending power, it would be legal under current precedent if explicitly enacted by Congress.
This new court decision instead was based on whether Congress actually authorized CMS to issue this mandate.
The first problem is the presumption that, while Congress may delegate some details to federal agencies, Congress must itself decide issues of “vast economic and political significance.” Given how large the entire health care industry is and the vast impact this requirement would have on it, the court found that the mandate had such vast economic and political significance that only explicit authorization by Congress could suffice. While Congress has given CMS general rulemaking power, no explicit authorization for such a vaccinate mandate exists.
This clear statement requirement also applies to any regulation that “alters the balance between federal and state power.” Since generally it is states that are responsible for the health of their local communities (which I had argued was the problem with the OSHA mandate), the expansion of federal authority to override the wishes of the states in this way impacts the balance between federal and state authority. If Congress wishes to use the spending power to do so, the Court required a clear statement of such intent. CMS could not identify one.
The other requirement is that, under the Administrative Procedure Act (APA), regulations may not be arbitrary. An agency must have a good reason for its action. The court found several problems with CMS’ vaccinate mandate.
First, CMS relied upon the effects of COVID-19 on long-term health care facilities to supposedly establish the likelihood of similar harms to other health care facilities. But long-term care facilities were hit especially hard by COVID-19, given the advanced age of the average resident, and so were not similarly situated compared to other health care facilities. CMS provided little or no evidence concerning COVID-19’s effects on other health care facilities and how vaccination would change those effects.
Second, given the lack of evidence concerning facilities other than long-term care facilities, the rule arbitrarily applied to facilities and individuals who would have substantially less risk. For instance, a psychiatric facility that only treats people under the age of 21 would not be similarly affected. Also, an employee with no patient contact would have substantially less risk of spreading the disease.
Third, CMS rejected obvious alternatives such as testing without explanation. To be “non-arbitrary” under the APA, the agency must consider all reasonable alternatives and reasonably explain why it did not choose each of those alternatives.
Fourth, CMS contradicted itself concerning natural immunity. CMS stated such individuals “are no longer sources of infections,” and yet still required them to be vaccinated.
Fifth, CMS had reversed its prior policy of encouraging vaccinations rather than requiring them, such as for influenza. In its rulemaking, CMS failed to acknowledge that it was changing its policy and it failed to reasonably explain why it was doing so. Such an explanation was required by the APA.
Last, the court rejected the “good cause” exception to the notice-and-comment requirement that CMS had claimed. Normally, a new rule must go through a 30-day notice-and-comment period during which the proposed rule is announced and the public is able to comment on the rule. There is an exception for a “good cause,” but given that CMS took more than two months to issue the final rule after it was first announced, there is no good reason why CMS couldn’t have taken public comment during that time, according to the court. Also, given that COVID-19 has been active for almost two years, there should have been plenty of time to accept comments.
While this mandate also remains blocked, the largest implications from this case may concern the requirement that rules having “vast economic and political significance” or that “alter the balance between federal and state power” require explicit authorization from Congress. While the Supreme Court has previously discussed such requirements, the new emphasis on them by lower courts could properly limit federal bureaucrats from expanding their own authority into areas that Congress did not intend.