On Tuesday, June 22, 2022, America’s Future along with Virginia Delegate Dave LaRock and eight other amici organizations, submitted an Amicus Brief to the Supreme Court of the United States (SCOTUS) supporting the relief requested by the Petitioners in Missouri v Biden (Dkt. No. 21-1463). Essentially, the Petitioners seek relief from enforcement of COVID-19 vaccine mandates created by the Centers for Medicare & Medicaid Services (CMS), announced on November 5, 2021, as an “immediately effective” administrative regulation. This case comes before the high Court following an Eighth Circuit Court of Appeals order vacating (and remanding) a preliminary injunction granted by the lower court in favor of the Petitioners – the states of Missouri, Nebraska, Alaska, Arkansas, Iowa, Kansas, New Hampshire, North Dakota, South Dakota, and Wyoming.
The mandate in question compels most Medicare-and Medicaid-certified healthcare providers (e.g., hospitals, clinics, critical access hospitals, inpatient rehab facilities, long term care facilities, physician offices, outpatient surgery centers, etc.) to establish and implement procedures and documentation protocols demonstrating all staff members have submitted to the administration of a COVID-19 vaccine or are exempt based on religious or medical reasons.
As a result of this mandate, all non-exempt staff members of these healthcare facilities who refuse to be vaccinated are constructively discharged from employment, although CMS refers to the constructive firing as “[a choice] to leave their jobs.” At a time when healthcare workers are desperately needed, particularly in rural communities, this Mandate inevitably leads to a reduction in our nation’s healthcare workforce. Surprisingly, CMS justifies this new regulatory vaccination requirement as a mechanism to address “staffing shortages” stating, “the urgent need to address COVID-related staffing shortages that are disrupting patient access to care, provides strong justification as to the need to issue this IFC requiring staff vaccination for most provider and supplier types over which we have authority.”
To carry out the mandate, CMS instructed that noncompliant providers are “subject to enforcement remedies imposed by CMS depending on the level of noncompliance and the remedies available under federal law (for example, civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement).”
The Petitioners argue, and we agree, the Mandate (1) “violates the Administrative Procedure Act (APA) because it is arbitrary, capricious, and unlawful;” (2) “is unconstitutional under the Spending Clause, the anti-commandeering doctrine, and the Tenth Amendment;” (3) “the Mandate violates the APA because it was issued without notice and comment,” and (4) “the Mandate exceeds CMS’s statutory authority.”
Turning to the government’s argument in this case, the Congressional Research Service summarized it as follows: “Congress may offer federal funds to nonfederal entities and prescribe the terms and conditions under which the funds are accepted and used” and “As the federal government increased its role in public health, Congress [also] relied on the Commerce Clause to pass more comprehensive national health regulations.” As our brief explains, cobbling together ill-conceived and perhaps politically-motivated interpretations of constitutional authority to fashion “a giant ‘catchall’ [general welfare] exception [swallows] the rule that the national government was intended to be one of enumerated and limited powers.”
Notably, on January 13, 2022, the SCOTUS issued an emergency stay, pausing the government’s vaccine-or-test administrative regulation issued by the Occupational Safety and Health Administration (OSHA) for employers with 100 or more employees in National Federation of Independent Business (NFIB) v OSHA 595 U.S. (2022). America’s Future joined 11 organizations in an Amicus Brief arguing the SCOTUS should grant NFIB’s Emergency Application for Stay of Administrative Action filed against OSHA, which it did.