The Defenders: A win for the constitution and the tug-of-war between federal and state
It a fight for the Constitution, focusing on the Federal Vs State powers and the 10th Amendment. The First, Fifth and 14th amendment also apply as in this incident the government threaten jobs livelihoods and property for Federal service personnel to include health care workers and military. But the focus is on federal overreach under the 10th amendment and healthcare workers in this case.
Other lawsuits pending address the legality of the mandates for the military who are threatened with dishonorable discharge and loss of jobs.
30 November the Kentucky Attorney General wrote:
A nationwide injunction was issued late today against the Biden Administration’s vaccine mandate for healthcare workers. We are grateful for the relief that the court’s decision brings to Kentucky’s healthcare workers and healthcare facilities.
A federal district court granted the request of Attorney General Cameron and 13 other states to stop the Biden Administration’s mandatory vaccination requirement for healthcare workers. The court issued a nationwide injunction against the Centers for Medicare & Medicaid Services (CMS) vaccine mandate, which required vaccinations for workers in healthcare settings that receive Medicare and Medicaid funding.
“The court ruled today that the Biden Administration and CMS do not have the authority to issue a mandatory vaccination requirement for healthcare workers,” said Attorney General Cameron. “We are grateful to the court for the relief this decision brings to burdened healthcare facilities and compassionate healthcare workers, in Kentucky and across our nation, who feared losing their jobs under this mandate.”
The court found that CMS does not have the authority to issue the mandate, writing “[t]here is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency. It is not clear that even an Act of Congress mandating a vaccine would be constitutional. Certainly, CMS does not have this authority by a general authorization statute.”
Absent this relief from the court, the CMS mandate would have required over 10.3 million health care workers in the United States to be fully vaccinated by January 4, 2022, and to have received at least the first dose of a vaccine no later than Monday, December 6, 2021. Approximately 2.4 million healthcare workers are currently unvaccinated. However, that mandate is now paused pending further proceedings.
Attorney General Cameron brought the lawsuit challenging the CMS mandate alongside Arizona, Alabama, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.
View a copy of the court filings here and here.
A federal court on Monday temporarily blocked the Biden administration’s COVID vaccine mandate for health workers at hospitals that receive federal funding, providing a temporary reprieve for healthcare workers in 10 states who faced having to be fully vaccinated by Jan. 4, 2022, or lose their jobs,” Ray L. Flores II, Esq. Of the Defender writes.
In his ruling, Judge Schelp wrote:
“The independent power of the states serves as a check on the power of the Federal Government: by denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” He added.
The Tenth Amendment helps to define the concept of federalism, the relationship between Federal and state governments. As Federal activity has increased, so too has the problem of reconciling state and national interests as they apply to the Federal powers to tax, to police, and to regulations such as wage and hour laws, disclosure of personal information in recordkeeping systems, and laws related to strip-mining. Learn more…from Cornell Law.
MATTHEW T. SCHELP UNITED STATES DISTRICT JUDGE addresses the illegal abuse of power of Federal Agencies and the risks that Americans and the economy and the healthcare face when ruthless Mandates are ordered by Federal agencies with immunity that have no responsibility.
On November 10, 2021, Plaintiffs, the States of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire (collectively, “Plaintiffs”) filed a Complaint challenging the mandate. Doc. [1]. The Complaint seeks preliminary and permanent injunctive and declaratory relief. On November 12, 2021, Plaintiffs filed a motion for a preliminary injunction, Doc. [6], requesting that this Court issue a preliminary injunction enjoining Defendants from imposing the mandate.
Plaintiffs are likely to succeed in their argument that Congress has not provided CMS the authority to enact the regulation at issue here. “[A]n agency literally has no power to act……
The mandate is likely an unlawful promulgation of regulations. Both the Administrative Procedure Act (“APA”) and the Social Security Act ordinarily require notice and a comment period before a rule like this one takes effect.9 5 U.S.C. § 553; 42 U.S.C. § 1395hh(b)(1). Failure to allow notice and comment, where required, is grounds for invalidating the rule…..
CMS’s purported “emergency”15—one that the entire globe has now endured for nearly two years, and to which CMS itself demonstrated ease in responding to—is unavailing…..CMS’s “emergency” does not justify use of the “good cause” exception, see Thrift, 862 F. Supp. at 591, and the unprecedented, controversial, and health-related mandate requires more good cause than CMS provided, Alcaraz, 746 F.2d at 612, Plaintiffs are likely to succeed in establishing that CMS improperly invoked the 5 U.S.C. § 553(b)(B) “good cause” exception…..
Under the APA, a court must “hold unlawful and set aside agency action” that is “arbitrary” or “capricious.”…..But the Court cannot, in good faith, allow CMS to enact an unprecedented mandate that lacks a “rational connection between the facts found and the choice made…..CMS has no data showing forced vaccinations in the healthcare industry has stopped the spread of COVID in hospitals…..
Butfactsdonotceasetoexistsimplybecausetheyareignored, and “[s]tating that a factor was considered25 is not a substitute for considering it.”……Plaintiffs have put forth evidence that this mandate would have a detrimental effect on the health and well-bring of their citizens…..
Staff reductions due to implementing the mandate, especially in light of the already understaffed healthcare facilities, will cause a cascade of consequences……The loss of certain staffing categories will diminish entire areas of care….
A big problem for those losing livelihoods and proper medical care concluded the Court is…“federal agencies generally enjoy sovereign immunity for any monetary damages.”…….Defendants are preliminarily enjoined from the implementation and enforcement of 86 Fed. Reg. 61,555 (Nov. 5, 2021), the Interim Final Rule with Comment Period entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” against any and all Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending a trial on the merits of this action or until further order of this Court.
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