On November 30, 2021, U.S. District Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana granted a nationwide preliminary injunction enjoining the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services (“CMS”) from implementing the vaccine mandate issued by CMS earlier this month. That mandate requires employees of Medicare and Medicaid certified healthcare facilities to have received the first dose of the COVID-19 vaccine by December 6, 2021, and the second dose by January 4, 2022. Judge Doughty’s order was entered in a lawsuit filed by a coalition of 14 states challenging the CMS vaccine mandate.
In reaching its decision, the Court found that the Plaintiff states were likely to succeed on the merits of their claim. To that end, the Court noted that CMS would be unable to demonstrate why it should be excused in this instance from not following the traditional notice and comment procedure of administrative rulemaking, noting that “[i]t took CMS longer to prepare the interim final rule without notice than it would have taken to comply with the notice and comment requirement.” The Court also found that “mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency,” while noting further that “[i]t is not clear that even an Act of Congress mandating a vaccine would be constitutional.” According to the Court’s interpretation, in issuing its vaccine mandate, CMS failed to comply with various provisions of the Social Security Act by failing to consult with appropriate state agencies prior to issuing the mandate and failing to conduct a regulatory impact analysis.
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