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Judgments, Uncategorized

Courts issue injunctions against federal CMS vaccine mandate

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The Missouri case injunction affects only the ten states that filed the case.  They are Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.  The Louisiana case injunction affects the remainder of the states.

The Louisiana injunction has now been limited to only those states filing that case.

So far, my only source for this update is:

“Earlier today, the United States District Court, Eastern District of Missouri, issued a preliminary injunction halting the Biden Administration from enforcing its vaccine mandate on healthcare workers. This is a huge victory for healthcare workers in Missouri and across the country, including rural hospitals who were facing near certain collapse due to this mandate,” said Attorney General Schmitt. “While today’s ruling is a victory, there’s more work to be done, and I will keep fighting to push back on this unprecedented federal overreach.”

— Eric Schmitt, Missouri Attorney General

… the court concluded that the Mandate was completely irrational and therefore probably illegal.

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This final finding is incredibly significant. The court is saying that the Mandate even fails rational basis review. “Rational basis” is the EASIEST standard for the government to meet. But when a law is “arbitrary and capricious,” it is not rational, and therefore fails even that minimal standard. In other words, it’s a dead duck. Quack, quack, aargh…

This finding about the lack of rational basis is a killer, and because it is based on factual findings, it will be extremely difficult for the Administration to overturn it on appeal. The appellate court must defer to the District Court on its factual findings, absent clear error. But the District Court carefully cited the evidence it relied on. And the evidence was almost all from admissions by CMS, and not the evidence provided by the states. Because of that, it will be almost impossible for an appellate court to overturn the District Court’s factual findings based on CMS’s own admissions.

How fast will this holding spreads beyond the original ten states? The rest of the states now have a complete roadmap to defeating the CMS Mandate. I think it will spread quickly. Stay tuned.

— Jeff Childers (Nov. 30)

The Court also found the COVID-19 pandemic was not the type of grave danger 29 U.S.C. 655 contemplates, noting that the OSHA Mandate made no attempt to explain why OSHA and the President were against CMS Mandates previously. The Court noted it is generally “arbitrary and capricious” to depart from a prior policy without providing a detailed explanation.

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The federal agency is required to give general notice of proposed rulemaking to be published in the Federal Register not more than thirty days before the proposed rules’ effective date and to give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments. Failure to give required notice and comment requires the rule to be vacated. … The CMS Mandate became effective on November 5, 2021, which is the same day it was published in the Federal Register.

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If the separation of powers meant anything to the Constitutional framers, it meant that the three necessary ingredients to deprive a person of liberty or property – the power to make rules, to enforce them, and to judge their violations – could never fall into the same hands. Tiger Lily, LLC v. United States Housing and Urban Development, 5 F.4th 666 (6th Cir. 2021). (Thapar, J. Concurrence). If the Executive branch is allowed to usurp the power of the Legislative branch to make laws, two of the three powers conferred by the Constitution would be in the same hands.

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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.

— Judge Terry A Doughty

Like the Missouri court, the Louisiana court called CMS’s experts liars, in fancy judge language:

“The Plaintiff States also argue that CMS’s rationale is flagrantly pretextual. The Government Defendants say it is not pretextual, but it is obvious that the mandate was enacted as a result of President Biden’s September 9, 2021, declaration of his intention to impose a national CMS Mandate. Both the CMS and OSHA vaccine mandates were published on the same day, November 5, 2021. However, the 46-page CMS Mandate does not even mention President Biden’s declaration of a national vaccine mandate. The presence of pretext is enough to render a rule arbitrary and capricious.”

A “pretext” is defined as “a false, contrived, or assumed purpose or reason,” and “a cunning trick or dishonest act.” It’s no small thing for a court to accuse CMS of acting under a pretext. And, the court said the pretext was SO BAD it constituted a separate and stand-alone reason to invalidate the whole rule.

But it got worse for CMS. The judge went ahead and considered the agency’s excuses at face value, evaluated all of CMS’ experts’ arguments about how great injection mandates are, and still found that they ALL came up empty:

“Although CMS spent pages and pages attempting to explain the need for mandatory COVID-19 vaccines, when infection and hospitalizations rates are dropping, millions of people have already been infected, developing some form of natural immunity, and when people who have been fully vaccinated still become infected, mandatory vaccines as the only method of prevention make no sense.”

NO SENSE. None. “Senseless.” In other words, a ridiculous travesty. What Narrative?

But wait. It gets better. The court — finally! — asked the question we’ve all been asking:

“The CMS Mandate does not yet require boosters to the COVID-19 vaccines. However, the CDC recently recommended boosters. If boosters are needed six months after being ‘fully vaccinated,’ then how good are the COVID-19 vaccines, and why is it necessary to mandate them?”

This is the logical conundrum that I’ve been harping on for two months now. If the vaccines work, why boost them? If they DON’T work, why force people to take them?

And — in a remark that must have been extremely gratifying for the beleaguered good doctor — the court raised this fundamental question about the “efficacy” of the injections, citing Dr. Peter McCullough:

“Dr. McCullough further declared that because of the progressive mutation of the spike protein, the virus has achieved an immune escape from COVID-19 vaccines. He stated the Delta variant is not adequately covered by the vaccines. In other words, even if you are fully vaccinated, you still may become infected with the COVID-19 virus.”

Ruh-roh, Scooby. It’s out now! A federal court just grabbed the curtain in its teeth and pulled it back so we can all see the pathetic little public health expert working the machinery.

— Jeff Childers (Dec. 1) with quotes from Judge Terry A Doughty

For the reasons set forth in this Court’s ruling, Plaintiff States’ Motion for Preliminary Injunction [Doc. No. 2] is GRANTED. Therefore, the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services, along with their directors, employees, Administrators and Secretaries are hereby ENJOINED and RESTRAINED from implementing the CMS Mandate set forth in 86 Fed. Reg. 61555-01 (November 5, 2021) as to all healthcare providers, suppliers, owners, employees, and all others covered by said CMS Mandate.

This preliminary injunction shall remain in effect pending the final resolution of this case, or until further orders from this Court, the United States Court of Appeals for the Fifth Circuit, or the United States Supreme Court.

— Judge Terry A Doughty

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