On Tuesday, November 30, a Louisiana federal judge dealt the Biden administration a major blow over COVID vaccine mandates for federal workers, ruling that such an order was likely unconstitutional and should only be implemented via an act of Congress. What will have the president and his team scrambling is that since Monday morning, a total of three court orders have been issued against the coronavirus regulations.
Health Care Workers Mandate
In Louisiana, U.S. District Judge Terry Doughty stated that the government lacked the constitutional authority to impose a mandate that health care workers across the nation must be vaccinated. He said that such a law should only be created by Congress, if at all. The court ruled, “There is no question that mandating a vaccine to 10.3 million health care 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.”
Judge Doughty offered a scathing conclusion as he halted the mandate nationwide, writing:
“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency. During a pandemic such as this one, it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties.”
The judge noted that the case “will ultimately be decided by a higher court than this one … However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.”
Federal health care workers were under the gun to receive a first dose vaccine by December 4 and a second shot by January 4. Although this ruling will offer some reprieve for those facing the ax, it remains to be seen what will happen to those workers who have either been fired, suspended or resigned under pressure.
A Prescient Ruling
On Monday, U.S. District Judge Matthew Schelp in the Eastern District of Missouri ruled that Congress had not granted the Centers for Medicare & Medicaid Services (CMS) the authority to mandate a vaccine for health care workers. And while this ruling only applied to the ten states that were involved in the case, the condemnation was no less severe than that of the Louisiana decision. Judge Schelp wrote:
“Truly, the impact of this mandate reaches far beyond COVID. CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans.”
A question was asked of a Kentucky court whether federal contractors should be required by law to be vaccinated. This case was joined by Ohio and Tennessee and sought a preliminary injunction.
While deciding the “narrow” case before him, Judge Gregory Frederick Van Tatenhove asked, “Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no.”
Step and Overstep
President Biden appears to be charging full steam ahead with orders and rules to manage the COVID situation, and yet it seems scant thought has been given to the legality or logic of such moves.
A winter strategy to deal with the Omicron variant is expected to be unveiled on Thursday, December 2. While details remain vague, it is expected the president will announce that all those entering the United States will require testing both before travel and when they arrive, and then finally, regardless of test result or vaccination status, to remain isolated for up to seven days. Fines and penalties are likely to apply to those who do not self-quarantine.
However, the same rules will almost certainly not apply to illegal immigrants, and legal challenges are expected.
Is Joe Biden hoping that he will get friendlier judges as cases move up the chain? Or is his plan to tie up opponents with court cases and challenges until the pandemic burns itself out? Either way, as judge after judge rules against him, he is building a solid reputation as a president that cares little for the Constitution and the rule of law.
~ Read more from Mark Angelides.