A day after President Joe Biden’s vaccine mandate suffered a major loss in court, two more judges acted to blunt the impact of Biden’s edict.
On Monday, U.S. District Judge Matthew Schelp of the Eastern District of Missouri banned the Biden administration from enforcing the mandate on health workers at hospitals that receive federal funding.
That ruling covered 10 states suing Biden: Iowa, Alaska, Arkansas, Missouri, Kansas, Nebraska, New Hampshire, Wyoming, North Dakota and South Dakota.
Biden’s week got even worse on Tuesday when U.S. District Judge Terry Doughty in Monroe, Louisiana, issued a temporary injunction against the mandate affecting health workers.
Doughty’s ruling covers all states except those already impacted by the Monday ruling, according to Axios.
Then came the ruling from U.S. District Judge Gregory Van Tatenhove, sitting in Frankfort, Kentucky, that said the government cannot enforce a regulation that all new government contracts require that contractors have their employees vaccinated, according to Reuters.
That ruling applies only in the three states that sued over the provision — Kentucky, Ohio and Tennessee.
In his opinion on the mandate imposed through the Center for Medicare and Medicaid Services, Doughty wrote that the government got it all wrong.
The judge offered a reminder to the Biden administration that the Constitution is not just a piece of paper hung on a wall.
“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,” said Doughty, a nominee of former President Donald Trump.
“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,” he said.
“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency,” Doughty wrote.
“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,” he said. “Because the Plaintiff States have satisfied all four elements required for a preliminary injunction to issue, this Court has determined that a preliminary injunction should issue against the Government Defendants.
“This matter 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.”
The judge also said the government overstepped its bounds, writing that the “principles of separation of powers weigh heavily against such powerful authority being transferred to a government agency by general authority.”
“There 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 statue,” he wrote.
Doughty said the government would not be helping patients with its mandate, as it claimed.
“Plaintiff States argue Government Defendants’ CMS Mandate ignores the Social Security Act’s focus on patient wellbeing and instead focuses on the health of healthcare providers. The Plaintiff States further maintain the goal of the CMS Mandate is to increase individual vaccine rates, which will actually have the effect of harming patient well-being due to staff shortages of providers and suppliers,” he wrote.
The judge concluded that “[r]equiring COVID-19 vaccinations to healthcare workers covered by the mandate would hurt the patients the Social Security Act was meant to help.”
In the ruling, Doughty pondered what he found as holes in the argument demanding that a vaccine mandate be imposed.
“The rejection of natural immunity as an alternative is puzzling. Natural immunity is the immunity of people who have been infected with the COVID-19 virus,” he wrote.
He also touched upon the quality of protection offered by the vaccine, writing, “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?”
In short, the judge wrote, from a policy perspective, he was puzzled.
“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,” Doughty wrote.
In his ruling, Van Tatenhove — who was nominated to the bench by former President George W. Bush — said the question before him was a narrow one, according to the Lexington Herald-Leader: whether Biden had the authority to impose vaccines on the employees of federal contractors and subcontractors.
“In all likelihood, the answer to that question is no,” the judge wrote.
“It strains credulity that Congress intended … a procurement statute to be the basis for promulgating a public health measure such as mandatory vaccination,” he said.
“If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency.”
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