Federal judges appointed by former President Donald Trump have dealt a string of setbacks to the Biden administration’s campaign to boost vaccination rates through new government rules.
This week two federal judges issued back-to-back injunctions temporarily blocking the White House’s new vaccine regulation issued through the Centers for Medicare and Medicaid Services. The rule would require employees at facilities receiving Medicare and Medicaid funding to be vaccinated against COVID-19, covering an estimated 17 million workers at 76,000 sites.
On Monday, U.S. District Judge Matthew Schelp in St. Louis granted a preliminary injunction against the rule after GOP governors and attorneys general from 10 states sued to stop it from moving forward. Schelp wrote that the Biden administration stepped beyond its legal authority and imposed “an unprecedented demand to federally dictate the private medical decisions of millions of Americans.”
Then, on Tuesday, U.S. District Judge Terry Doughty in Monroe, Louisiana, issued a separate injunction against the rule that would apply in the states not covered by Schelp’s order. Together the orders effectively block the Biden administration from enforcing the rule nationwide until the legal challenges are heard.
“There is no question that mandating a vaccine to … healthcare workers is something that should be done by Congress, not a government agency,” Doughty wrote. “It is not clear that even an Act of Congress mandating a vaccine would be constitutional.”
Both Doughty and Schelp were nominated to the bench by Trump and confirmed by the then-GOP majority in the Senate, showing how the former president’s shaping of the judiciary affects Biden’s vaccination plans. And they are not the only Trump judicial appointees to put hurdles up in front of the administration.
In early November, a panel of three judges issued a stay against Biden’s new vaccine-or-test rule under the Occupational Safety and Health Administration. That rule requires large employers to implement programs in which workers would show proof of vaccination or undergo weekly testing for COVID-19. It is the most expansive of the White House’s new vaccine rules, covering an estimated 84 million workers.
The three-judge panel with the U.S. Court of Appeals for the 5th Circuit in New Orleans included two Trump appointees, Kyle Duncan and Kurt Engelhardt. In issuing a stay against the vaccine rule, the judges said there may be “grave statutory and constitutional issues with the Mandate.” (The OSHA rule is actually not a vaccine mandate since it gives workers the option to test instead.) The judges did not rule on the request for a permanent injunction led by state Republican officials.
The White House responded with a brief last week arguing that the stay should be lifted immediately because OSHA has the clear authority to issue and enforce the rule under worker safety law. “Congress charged OSHA with addressing grave dangers in the workplace, without any carve-out for viruses or dangers that also happen to exist outside the workplace,” the administration wrote.
The most significant parts of that regulation were not scheduled to be implemented and enforced until Jan. 4, to give employers time to put their vaccine-or-test programs in place.
Around 71% of U.S. adults aged 18 or older are fully vaccinated against COVID-19, according to New York Times data. The White House has argued that its new vaccine rules are the best way to protect people from COVID-19 transmission at work. So far, the virus has killed more than 780,000 Americans.
OSHA said its estimates suggest the rule could save “over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of the next six months.”
Because there were numerous challenges to the rule, including the one in the 5th Circuit, a lottery was done to determine which court would hear the full case. The Biden administration did not win the lottery. The case ended up in the conservative 6th Circuit, where 20 of 26 judges were appointed by Republicans, including roughly a third by Trump.
The OSHA case will be heard there by a three-judge panel but may well end up before the Supreme Court, where conservatives hold a 6-3 majority following Trump’s appointments of justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.