DOJ Urges SCOTUS to Block Injunctions Halting Vaccine Mandate for Health Care Workers | National Law Journal

Update: On January 13, 2022 the Supreme Court in a per curiam opinion in Missouri v. Biden narrowly allowed the DHHS/Medicare vaccine mandate for health workers to stand.  The Chief Justice John Roberts and Justice Brett Kavanaugh joined the three Democrat-appointed justices to uphold the rule. - gwc

• We entered the pandemic era with the bland assurance that in Jacobson v. Massachusetts, 197 U.S. 11 (1905) the United States Supreme Court had readily upheld a modest fine against a man who had defied an unexceptional smallpox vaccine mandate.  Little did we know that First Amendment law would be upended as churches begged to be excused from general requirements regarding congregant settings likely to present increased risk of transmission of a lethal virus.
• Nor that two circuit courts the 5th and 8th would refuse to stay lower court orders blocking an Emergency Temporary Standard issued by OSHA - the agency charged with keeping workplaces safe.  One Circuit - the 11th declined to block enforcement of the Rule.  That virtually guarantees that the Supreme Court will agree to decide the issue. But if one were forum shopping that is the last place the Department of Labor would choose to go. 
• But in an encouraging sign Frank Easterbrook of the 7th Circuit - no bleeding heart liberal - today strongly upheld the vaccination mandate [No. 21-2326[ challenged by Indiana University students.  The substantive due process challenge was easily disposed of given over a century of mandated vaccination- particularly since the IU mandate provides for religious or medical exceptions.
• The United States Supreme Court may be swayed by the fact that under the ETS covered employees who remain unvaccinated must undergo weekly testing and wear face coverings at work.
• - GWC
  

DOJ Urges SCOTUS to Block Injunctions Halting Vaccine Mandate for Health Care Workers | National Law Journal

Indeed, it is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients," - Solicitor General Elizabeth Prelogar .

By Marcia Coyle

The Biden administration is asking the U.S. Supreme Court to pause two federal court injunctions blocking its vaccine mandate for health care workers while the government pursues appeals.

In two emergency applications filed simultaneously Thursday evening, U.S. Solicitor General Elizabeth Prelogar told the justices that the vaccine requirement, which includes medical and religious exemptions, “falls squarely within the plain text of the secretary’s statutory authority and complies with all procedural requirements. Indeed, it is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients.”

District courts in Louisiana and Missouri imposed the injunctions in challenges to the vaccine requirement by two groups of states. The government’s emergency applications were filed with Justices Samuel Alito Jr. and Brett Kavanaugh, who handle emergency matters from the circuits in which Louisiana and Missouri are located. They can rule on the government’s requests or refer them to the full court for decision.

The U.S. District Court for the Eastern District of Missouri preliminarily enjoined enforcement of the rule in 10 states. The U.S. Court of Appeals for the Eighth Circuit denied the government’s motion for a stay pending appeal.

In the other case brought by a group of 14 states, the U.S. District Court for the Western District of Louisiana blocked the vaccine rule in the 40 states not covered by the Missouri injunction.  The Fifth Circuit narrowed that injunction to apply only within the 14 states but also denied a stay on the ground that the merits presented a “close call” under circuit precedent, according to Prelogar.

Those 14 states include Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Oklahoma, Ohio, South Carolina, Utah, and West Virginia.

Prelogar wrote that Congress authorized the secretary of Health and Human services to condition health care facilities’ participation in Medicare and Medicaid on their compliance with “requirements [that] the Secretary finds necessary in the interest of the health and safety” of patients.

“For decades, the secretary has exercised that authority to require participating healthcare providers to establish active programs for the ‘prevention’ and ‘control’ of ‘infectious diseases’ within their facilities,” she wrote.

In November, the secretary amended those regulations to address the COVID-19 pandemic. A Florida district court was the first district court to address the rule and refused to block it. The Eleventh Circuit then denied an injunction pending appeal, ruling that the vaccine rule fell with the department’s “express statutory authority to require facilities voluntarily participating in the Medicare or Medicaid programs to meet health and safety standards to protect patients.”

Prelogar noted that in a fourth challenge to the vaccination rule, the Northern District of Texas on Wednesday night imposed a preliminary injunction against application of the rule to Medicare and Medicaid facilities in Texas.