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UPDATE: On the same day that the U.S. Supreme Court refused to block a New York law forcing all state healthcare workers to receive the COVID-19 vaccine, without allowing for religious exemptions, the Eighth U.S. Circuit Court of Appeals denied an appeal by the Biden administration to lift a temporary injunction issued by District Court Judge Matthew T. Schelp of Missouri blocking the White House’s healthcare worker mandate in 10 states. That injunction is separate from a nationwide injunction later issued by U.S. District Court Judge Stan Baker of Georgia, which is now pending before the Fifth Circuit Court of Appeals, a conservative-leaning court that has already issued its own nationwide injunction against a Biden administration vaccine mandate, this one for large employers through the Occupational Safety and Health Administration (OSHA).
Earlier today, a federal judge in Kentucky issued a preliminary injunction blocking the implementation of the Biden administrationโs COVID-19 vaccine mandate for federal government contractors and subcontractors, just one day after a federal district court in Missouriย temporarily blockedย a COVID-19 vaccine mandate for healthcare workers participating in Medicare and Medicaid programs in 10 states and only a few days after the Ninth Circuit issued two injunctions blocking vaccine mandates for prison workers in California and students in San Diego.
Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky said his decision had nothing to do with the effectiveness of the vaccines but is based on the question of whether or not the Biden administration has the authority to impose vaccines on the employees of federal contractors and subcontractors. โIn all likelihood, the answer to that question is no,โ Van Tatenhove wrote.
Judge Matthew T. Schelp, who serves the U.S. District Court for the Eastern District of Missouri, issued the injunction in response to the Centers for Medicaid and Medicaid Services (CMS) mandate, which requires nearly every employee, volunteer, and third-party contractor working at 15 categories of healthcare facilities to be vaccinated against COVID. The agency held that unvaccinated staff needed to be subjected to the mandate to address the โrisk of unvaccinated health care staff to patient safety.โ
The judge responded by writing, โNo one questions that protecting patients and healthcare workers from contracting COVID is a laudable objective. But the court cannot, in good faith, allow CMS to enact an unprecedented mandate that lacks a โrational connection between the facts found and the choice made.โโ
Judge Schelp based the preliminary injunction on the following legal reasons:
He concluded that the public would also benefit from the preliminary injunction โbecause it would ensure that federal agencies do not extend their power beyond the express delegation from Congress, as already discussed,โ adding that โwhile it is indisputable that the public has a strong interest in combating the spread of COVID-19, our system does not permit agencies to act unlawfully even in pursuit of desirable ends.โ
The injunction applies to Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming as the litigation continues to move forward. Judge Schelpโs decision comes after the Fifth Circuit U.S. Court of Appeals affirmed a temporary injunction and ordered the Occupational Safety and Health Administration (OSHA) to cease any efforts to enforce its vaccine mandate against private employers with 100 employees or more. Dozens of other legal challenges against the OSHA mandate have been consolidated and will heard by the Sixth Circuit Court of Appeals.
In addition, the Ninth Circuit U.S. Court of Appeals has temporarily suspended a COVID-19 vaccine mandate for prison workers in California, a ruling that will postpone new rules that had been slated to take effect on January 12, 2022. U.S District Judge Jon Tigar had ruled in September that prison employees would either have to get the vaccine or a medical or religious exemption and his ruling also required prisoners to get the vaccine in order to work outside the prison or have in-prison visits from family. Surprisingly, California Gov. Gavin Newsom, D, joined with the California Correctional Peace Officers Association in supporting the vaccine mandateโs repeal, arguing that the mandate would force correctional officers to โresign en masse rather than comply, leaving prisons dangerously understaffed.โ
A three-judge panel for the Ninth Circuit also temporarily blocked the San Diego Unified School District’s student vaccine mandate, for as long as the district offers medical exceptions for pregnant students. The suit was brought by a junior high school student who asked for a religious exemption and was denied. California law has not allowed religious exemptions for vaccines since 2016.
How are these vaccine mandates unconstitutional? The judicial system is counting the ways. And itโs not surprising that they are all coming up with various reasons since these mandates are overly broad, coercive, and powered by executive agencies and bureaucrats who show no respect for the legislative process, religious liberty, statesโ rights, and personal autonomy.
The judicial fight will continue as the cases are still to be fully argued by both sides on the merits, but it is heartening to see that the courts are taking a calm approach and allowing legal reasoning and constitutional principles to take precedence over fear and hysteria. The pandemic will one day fade into history, but in the meantime, civil liberties must be protected at all costs โ for once they are gone, it will be difficult, if not impossible, to get them back.
