Judge blocks Biden vaccine rule with reference to “unvaccinated freedom interests”

President Joe Biden speaks in front of a sign advertising the vaccines.gov Web site.
Enlarge / President Joe Biden talks about the approval of the COVID-19 vaccine for children ages 5-11 on November 3, 2021 in Washington, DC.

Getty Images | Drew Angerer

A federal judge yesterday blocked a Covid-19 vaccine mandate for the Biden administration for health care workers and granted a request for a preliminary injunction filed by Republican attorneys general from 14 states.

U.S. District Judge Terry Doughty ruled that the government lacks the authority to implement the rule, which “requires staff of 21 types of Medicare and Medicaid healthcare providers to receive one vaccine by December 6, 2021, and to receive the other vaccine by December 4, 2021. January, 2022. ” Non-compliant providers risk penalties, including “termination of Medicare / Medicaid provider agreement.”

The Centers for Medicare and Medicaid Services (CMS) mandate regulates over 10.3 million health care workers in the United States, of which 2.4 million are unvaccinated. The biden vaccine rule is being challenged by state attorneys from Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio. The lawsuits of the Republican AGs were filed against CMS and the U.S. Department of Health and Human Services.

The preliminary injunction they won applies nationwide except for 10 states that “are already under a preliminary injunction dated Nov. 29, 2021, issued by the Eastern District of Missouri,” it reads in a court order. These states are Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota and South Dakota.

“Freedom interests of the unvaccinated”

Doughty’s ruling can be challenged in the U.S. Court of Appeals for the Fifth Circuit, which has already ruled against the United States in a similar case. It can eventually reach the Supreme Court. If no higher court overturns the interim ban, 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 constitutions, it meant that the three ingredients needed to deprive a person of freedom or property — the power to make rules, enforce them, and condemn their transgressions — could never coincide. hands. If the executive is allowed to usurp the power of the legislature to make laws, two of the three powers conferred by the Constitution will be in the same hands.

If human nature and history teach anything, it is that civil liberties face serious risks when governments proclaim indefinite states of emergency. During a pandemic like this, it is even more important to ensure the separation of powers in our constitution to avoid eroding our freedoms …

This case will ultimately be decided by a higher court than this one. However, it is important to maintain the status quo in this case. The freedom interests of the unvaccinated require nothing less.

Doughty “considered limiting the ban to the fourteen plaintiff states,” but decided to do so nationwide because “there are unvaccinated health workers in other states who also need protection.”

The Biden contractor rule is also blocked

In another ruling yesterday, a judge issued 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 decision was issued by Judge Gregory Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky.

Van Tatenhove wrote that vaccines are effective and that the government “under some circumstances” may require citizens to be vaccinated. But the question in the case is narrow, asking whether the president can “use congressional delegated authority to control federal procurement of goods and services to impose vaccines on employees of federal contractors and subcontractors … In all likelihood, the answer to that question is no. . “

Judge recently cites ruling against OSHA

Doughty cited a November 12 ruling by the Fifth Circuit Court of Appeals, 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 take weekly COVID-19 -19 tests and wear a mask. ” The Court of Appeal “remained the OSHA mandate due to perceived serious statutory and constitutional issues awaiting 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 Court of Appeal found, “that the OSHA mandate exceeded the authority of the federal government under the trade clause because it regulated non-economic inactivity (the person’s choice to remain unvaccinated), which falls entirely within the state police jurisdiction” and “that the principles of separation of powers questions the doctrine ‘) casts doubt on the OSHA mandate’s assertion of virtually unlimited power to control individual behavior under the guise of a workplace regulation, “Doughty’s note noted.

“In addition, the court found ‘irreparable damage’ to petitioners’ freedom interests by having to choose between their job and the vaccine,” Doughty wrote.

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