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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.

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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.

NEXT: District Court Blocks Texas's Social Media Statute

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  1. I think there will never be a covid prevention measure the Republicans will not actively oppose. They are about as pro-virus as they can get. I do not know if any political movement in history that has adopted such a pro-virus position as much as Republicans. It is absurd.

    1. This is how the Republicans choose to flame out. Every gun nut’s fingerprints are on the gun that jerk in MIchigan bought for his misfit son. Every clinger is being branded durably, in the eyes of young Americans, as a science-disdaining, disingenuous, virus-flouting, antisocial, superstitious, ignorant loser. Add in the old-timely bigotry — which can’t be hidden behind euphemisms such as ‘traditional values,’ ‘conservative values,’ or ‘religious values’ any longer — and the trajectory of the culture war becomes predictable, desirable, and admirable.

      May the better ideas win. Make that continue to win in modern America.

      Clingers hardest hit.

      1. " Every clinger is being branded durably, in the eyes of young Americans, as a science-disdaining, disingenuous, virus-flouting, antisocial, superstitious, ignorant loser. "

        I must respectfully disagree.

        Every clinger is being branded durably, in the eyes of young Americans, as a science-disdaining, disingenuous, virus-flouting, antisocial, superstitious, ignorant *winner*.

        The shoe fits. When Roe vs Wade is overturned, along with the Constitutional right to Privacy, the floodgates for overturning Lawrence vs Texas and Obergefell vs Hodges will burst.

        Gerrymandering will ensure that even if 70% of the population would disagree, they won't have the power to restore the situation.

    2. My partisan instincts are glad that Republicans are avoiding vaccination. My humanitarian instincts are to the contrary.

    3. Probably because the current "covid prevention measures" are all authoritarian and unscientific. So Republicans are doing the right thing.

  2. "Unlike in the Missouri case, the court hear ordered nationwide relief, and without much justification."

    A district court's jurisdiction does not extend across the entire nation. Quite frankly, such injunctions should be flatly ignored.

    1. Inconveniently, that might get the Federal government in trouble in MIssouri, where this district court definitely does have jurisdiction.

      The UK Supreme Court recently gave judgment in a case that illustrates that principle. The Home Secretary thought that a court order was incorrect as a matter of law, i.e. imposed a bail condition that the court had no power to impose. So she decided the court order was a nullity and could be ignored. Not so, said the Supreme Court. If you don't like a court order, you should appeal it. You can't ignore it.

      R (on the application of Majera (formerly SM (Rwanda)) (AP) v Secretary of State for the Home Department [2021] UKSC 46

      1. I thought it was obvious that the order should be valid within their jurisdiction, and invalid beyond that.

        1. ...and if you ignore a court's order outside it's (geographic) jurisdiction, you can be held in contempt within its jurisdiction.

          1. Except it has no jurisdiction outside of its jurisdiction, so their contempt charge can go in the trash too.

            A Judge in Mississippi has absolutely no authority over my life in Colorado whatsoever. They are not accountable to me, I have no say in the matter, so they get no say in mine.

    2. If liberal judges can do it, so can conservative ones.

      Sorry, but dems the rules.

  3. Oh, the joy of the nationwide injunction.

    Call me crazy, but I bet we will see challenges based on APA, too. We certainly saw many APA legal challenges in recent years.

  4. It seems to me that all the arguments against a national injunction apply just as strongly against the federal government being able to impose this rule in the first place.

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