The Volokh Conspiracy
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As predicted, the vaccine mandate for health care workers is the first of the Biden Administration's vaccine mandates to reach the Supreme Court. Today the Department of Justice asked the Supreme Court to stay the lower court injunctions against the mandate, citing (among other things) a circuit split on the question.
In November, at the White House's direction, the Center for Medicare and Medicaid Services (CMS) promulgated an interim final rule mandating that Medicare and Medicaid service providers require their workers to obtain COVID-19 vaccines. Several states filed suits against the rule, and sought preliminary injunctions against its enforcement pending rulings on the merits.
The two circuit courts of appeals to consider injunctions against the CMS mandate reached opposite conclusions. As I noted here, the U.S. Court of Appeals for the Eleventh Circuit refused to enjoin the rule, concluding that the challenge was unlikely to succeed on the merits. This week, the U.S. Court of Appeals for the Fifth Circuit reached the opposite conclusion, while also refusing to uphold a nationwide injunction against the rule. This division in authority, and the existence of injunctions against the rule covering multiple states, make a Supreme Court response reasonably likely.
It is interesting that the CMS mandate is reaching the Court prior to the higher-profile OSHA Emergency Temporary Standard, currently under consideration in the U.S. Court of Appeals for the Sixth Circuit. It also presents slightly different issues. The policy arguments in support of mandating vaccination of health care workers is greater than that for employees at larger firms, but the CMS rule is also significantly more stringent than the OSHA rule, as it does not allow a testing alternative. The CMS rule is also being imposed as a condition on the receipt of federal spending (through participation in Medicare or Medicaid), rather than as direct federal regulation. That said, in both cases the challengers stress the unprecedented nature of the vaccine requirement and question whether Congress clearly authorized the imposition of such a requirement.
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