“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.

 

Yet another Trump district judge has blocked a requirement by the federal Centers for Medicare and Medicaid Services (CMS) that health care workers at facilities that participate in the two programs, which serve millions of vulnerable Americans, must be vaccinated against COVID-19. Trump judge Mathew Kacsmaryk, the same judge who ordered reinstatement of Trump’s restrictive “remain in Mexico’ immigration policy, granted a preliminary injunction against the CMS rule in Texas in the December 2021 decision in State of Texas v Becerra.

As discussed in an earlier blog entry,  pursuant to its recognized authority to establish rules for health facilities that want to receive Medicare or Medicaid funding, CMS enacted a rule in early November  that requires such facilities to ensure that health care workers who deal with vulnerable patients receive a COVID-19 vaccine. Many states with Republican governors challenged the rule. In such a suit filed by Florida, a district judge nominated by President George W Bush denied a preliminary injunction against the rule, and that ruling was affirmed on appeal in a 2-1 decision (with Trump judge Barbara Lagoa dissenting).  As the Eleventh Circuit majority explained, the “last thing” vulnerable people seeking medical care “should have to endure is the infliction of a deadly virus on them by those who are supposed to be taking care of them, when it could have been prevented” by vaccination. The Justice Department explained that after careful review of the evidence, CMS and the Secretary of the Department of Health and Human Services (HHS) has concluded that “action was urgently needed to protect” Medicare and Medicaid patients from becoming infected with COVID-19 while they receive care in facilities partly funded by these programs, and that the rule was issued pursuant to the “statutory responsibility” assigned by Congress to “ensure that the health and safety of patients are protected in these federally-funded facilities.”

Despite all this, based largely on decisions by Trump judges against vaccine requirements, Trump judge Kacsmaryk granted the Texas attorney general’s request for a preliminary injunction to freeze the rule in that state. Noting that the Fifth Circuit had recently ruled that another Trump district judge’s injunction in Louisiana could not apply nationwide to states like Texas not included in that suit, Kaczmaryk ruled that Texas should get a preliminary injunction for largely the same reasons as in the Louisiana case. As in that case, he claimed that Texas had “quasi-sovereign Interests” and risked health care staff shortages if the rule was in effect, as well as loss of “liberty.” Although he was fine with “encouraging” vaccines, Kaczmaryk claimed that the harm from not mandating them was “speculative”, without any citation of medical authority. He also maintained that the CMS requirement was “overbroad” and was not authorized by “exceedingly clear language” that he claimed would be required for a vaccine mandate.

Like the previous anti-vax rulings, this decision will likely be appealed, and the issue will probably be decided by the Supreme Court. In the meantime, this injunction contradicting the expert judgment of health officials that vaccination is critical to protect the “health and safety” of patients and workers in health care setttings,” including 76,000 health care facilities across the country that serve Medicare and Medicaid patients, threatens serious harm to these interests.  As the Justice Department explained in a filing seeking to put back in place the vaccination requirement as to big businesses, “delaying” such requirements “will likely cost many lives per day” as well as “large numbers of hospitalizations” and “other serious health effects.” The case is yet another example of the importance, as part of our fight for our courts, of ensuring that the Senate promptly confirms fair-minded district court judges, as well as those on the courts of appeals, who will appropriately respect Congress’ authority as well as expert agency judgment on crucial issues like COVID-19.