The Volokh Conspiracy

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Vaccine mandates

CMS Vaccine Mandate for Health Care Workers Enjoined Nationwide

Two district courts have granted injunctions against the rule requiring vaccines for workers at Medicare and Medicaid providers, one nationwide.


Several lawsuits have been filed against the Biden Administration's requirement that workers at Medicare and Medicaid service providers obtain COVID-19 vaccines. (The so-called CMS rule, because it was promulgated by the Center for Medicare and Medicaid Services (CMS).) Unlike the legal challenges to the OSHA COVID-19 vaccine-or-test mandate, these challenges are proceeding separately in district courts around the country. [For background on this rule, see my posts here and here.]

These lawsuits have produced some preliminary rulings. A federal district court in Florida denied that state's request for a preliminary injunction against the CMS rule. Florida has appealed this ruling to the U.S. Court of Appeals for the Eleventh Circuit.

A suit filed by ten states in federal district court in Missouri was received more favorably. On Monday, a federal judge there granted a request for preliminary injunction, barring the CMS rule from going into effect in the ten plaintiff states (Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire). The opinion here is straight-forward, in that it largely tracks and embraces the plaintiffs' arguments without much consideration. The federal government is appealing this decision to the U.S. Court of Appeals for the Eighth Circuit, where I expect the court to provide more careful analysis (whether or not it reaches the same result).

On Tuesday, a federal district court in Louisiana looked favorably on another suit against the CMS rule, this one filed by fourteen states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio). As in Missouri, the court here granted the request for a preliminary injunction. Unlike in the Missouri case, the court hear ordered nationwide relief, and without much justification.

Here is how Judge Terry Doughty justified the grant of a nationwide injunction against the CMS rule, as opposed to relief limited to the plaintiff states.

In addressing the geographic scope of the preliminary injunction, due to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity. Texas, 809 F.3d at 187-88. Although this Court considered limiting the injunction to the fourteen Plaintiff States, there are unvaccinated healthcare workers in other states who also need protection. Therefore, the scope of this injunction will be nationwide, except for the states of Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, South Dakota, since these ten states are already under a preliminary injunction order dated November 29, 2021, out of the Eastern District of Missouri.

To call this rationale paltry would be generous. There is no generalized need for uniformity when issuing injunctions. Nationwide injunctions are the exception not the rule, and it has long been common for federal regulations to be in effect in some parts of the country but not in others as legal challenges wind their way through the courts (and sometimes, long after, as occurred with the Army Corps/EPA "migratory bird rule").

The only authority Judge Doughty cites for the necessity of providing nationwide relief is the U.S. Court of Appeals for the Fifth Circuit's decision in Texas v. United States, which challenged the DAPA immigration reforms. And what did the Fifth Circuit say in that case? Here we go:

The government claims that the nationwide scope of the injunction is an abuse of discretion and requests that it be confined to Texas or the plaintiff states. But the Constitution requires "an uniform Rule of Naturalization"; Congress has instructed that "the immigration laws of the United States should be enforced vigorously and uniformly "; and the Supreme Court has described immigration policy as "a comprehensive and unified system."Partial implementation of DAPA would "detract[ ] from the 'integrated scheme of regulation' created by Congress,"and there is a substantial likelihood that a geographically-limited injunction would be ineffective because DAPA beneficiaries would be free to move among states. (Emphases in original.)

Texas v. U.S. was an immigration case, and firmly rested the need to provide extraordinary, nationwide relief on the fact that the Constitution and Congress both support providing nationwide relief in such cases because of the distinct national interests in uniform immigration policy. The CMS Rule, on the other hand, has nothing to do with immigration, nor do any of the interests involve similarly implicate national interests or create a need for national reform. What does Judge Doughty offer to justify his claim? The fact that "there are unvaccinated healthcare workers in other states who also need protection"—workers who were not represented in the case nor within the Court's jurisdiction. This is weak stuff. While the Fifth Circuit might well conclude an injunction is justified on appeal, I doubt it will look kindly on the nationwide relief.

A fourth case against the mandate has been filed in Texas. The state there is seeking a preliminary injunction too, but the injunction is not particularly necessary anymore, given the nationwide injunction entered in Louisiana.