Republican attorney generals have filed dozens of lawsuits challenging the federal government’s COVID-19 vaccine mandate set to begin on Jan. 4, 2022.
A whirlwind of confusion spirals around the issue and what is at stake. These lawsuits present constitutional challenges, as well as practical issues, which will impact the nation immediately and in generations to come.
First and foremost, it must be acknowledged that President Joseph Biden did not issue a single vaccine mandate. He issued three separate mandates, which all have different legal grounds.
On Sept. 9, the president announced that he would instruct the government to develop and implement a COVID-19 vaccination mandate that would apply to agencies and employers under the authority of the federal government or federal agencies.
This specifically included federal employees, agencies who participate in the Centers for Medicare and Medicaid Services (CMS) programs, and any employer governed by the Occupational Safety and Health Administration (OSHA).
OSHA and CMS rules were released by the White House on Nov. 4. Within days, 34 lawsuits were filed, and there is at least one suit in each of the 12 regional circuit courts.
Arizona was the first to file a complaint against the federal contractor and OSHA mandates but failed to get an injunction.
On Oct. 29, seven states (Alabama, Georgia, Idaho, Kansas, South Carolina, Utah and West Virginia) filed suit in the U.S. District Court for the Southern District of Georgia.
All of this has quickly become a legal and political mess. Combining the federal contractor and OSHA mandates in lawsuits creates confusion because they need to be discussed separately.
While the federal contractor mandate has many opponents, it is a tough legal challenge. Generally, businesses have a right to set the rules for employment and the rules for contracts, except when those rules discriminate against a protected class (race, gender, age and disability).
The federal government is a business. Its size does not negate this fact and, thus, the federal government retains the right to set the rules for employment and contracts, like every other business.
The OSHA mandate, on the other hand, faces constitutional challenges. The primary argument is that the enforcement of vaccine mandates falls within the jurisdiction of the individual states and, thus, the mandate violates the 10th Amendment.
The 10th amendment ensures that states retain all rights not granted to the federal government in the Constitution. It is argued that vaccination mandates are such a right.
Many hold up the majority ruling of Jacobson v. Massachusetts in which the Supreme Court affirmed a state legislature’s right to enact legislation that would support a vaccine mandate.
While the Constitution does not specifically grant this right to the federal government, one could argue that it is built into the general welfare clause. However, this might only apply to congressional spending power and not to presidential actions.
The last group of lawsuits are related to the CMS mandate.
The first was filed on Nov. 10 by 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming) in the U.S. District Court of the Eastern District of Missouri.
Five days later, 12 more states (Alabama, Arizona, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Oklahoma, Southern Carolina, Utah and West Virginia) filed a lawsuit using similar arguments.
Finally, Florida filed suit on Nov. 18, claiming the mandate was simply unconstitutional.
The CMS mandate sits on better legal ground, as hospitals and nursing homes that receive reimbursements through CMS function as federal contractors.
On Monday, Federal Judge Matthew T. Schelp, a President Trump appointee and judge overseeing the case in Missouri, issued a 32-page ruling that halted the mandate. Schelp’s ruling stated that CMS might not have the proper authority since it does not have congressional approval.
The argument proposed by Republican Attorneys General is that the CMS mandate violates the APA and SSA because they did not publish the rules for affected parties to comment on in advance.
There was no time for the typical 90-day public comment periods as the CMS mandate went through an expedited process. CMS is currently soliciting comments, but the public comment period will end after the mandate goes into effect.
In addition, CMS may not have the statutory authority to impose the mandate in the first place as its governing board is Congress and not the White House. We’ll have to wait at least another week or two before we see how this plays out in the courts.
All of this can be mind-numbing and feel like nothing more than political maneuverings. While there is no doubt that most of these actions are prompted by political virtue signaling, they are not pointless.
No matter our political leanings or affiliations, these legal challenges are important because they force us to consider limits on federal powers and the obligations of the states. This is not a small matter, and it deserves our careful consideration.