In three different cases in August, Trump appeals court judges have blocked significant steps under the Biden Administration to help protect public health. These include: 1/ an order by Trump judge Grant blocking an administration requirement that federal contractors ensure that workers are vaccinated for COVID-19 in Georgia v President; 2/ a permanent injunction by Trump judges Willett and Engelhardt blocking any future requirement on abortions or gender reassignment surgery in Franciscan Alliance v Becerra; 3/ a deciding vote by Trump judge Brasher that blocked the FDA from denying requests by tobacco companies to approve electronic nicotine delivery systems in Bidi Vapor LLC v US Food and Drug Administration.
What’s the COVID-19 Vaccination Case About?
Several months ago at the Supreme Court, Trump justices provided the deciding votes to block the Administration’s requirement that big businesses ensure that workers receive COVID-19 vaccinations. The Court narrowly upheld such a mandate for Medicare and Medicaid workers. Still pending in lower courts are such requirements for employees of government contractors. Experts suggested that a challenge to such mandates was a “long shot” because of well-recognized government authority over contractors.
Nevertheless, last December, a Trump district judge issued a nationwide order blocking the requirement. In August, an opinion by Trump Eleventh Circuit judge Britt Grant upheld that order as applied to Georgia and the other six states who filed the lawsuit.
Judge R. Lanier Anderson dissented. He explained that plaintiffs had failed to demonstrate that the President “lacks authority” to require agencies to insert a clause into contracts that “require COVID-19 vaccinations” for contractor employees who work on federal contracts. To the contrary, he went on, the statute “provides clear authority” for the requirement. “[M]any court decisions,” he continued, have upheld such Presidential orders. In short, Judge Anderson concluded, “the president’s exercise of authority here was clearly authorized.”
Whether the Supreme Court will review the Eleventh Circuit’s decision remains unclear. In any event, the opinion by Trump judge Grant is yet another example of rulings by Trump judges that harm the Administration’s efforts to protect public health.
What Happened in the Franciscan Alliance Case?
This case started as a challenge to Obama Administration 2016 rules under the ACA that prohibited racial, sexual and other discrimination by health care entities. As the rules changed under Trump and Biden, the relief sought in the lawsuit changed too. Most recently, the Franciscan Alliance, a Catholic health care system, sought a permanent injunction prohibiting the Department of HHS from requiring it to perform abortions or gender reassignment surgeries in violation of its religious beliefs.
Despite the courts’ decision to vacate the 2016 rule, Franciscan wanted more. The district court had previously declined to prohibit any future HHS action because “there was no indication” that HHS would try to enforce the law as Franciscan feared. After the 2020 election, however, the Fifth Circuit ruled that the “legal landscape had shifted” and sent the case back to the district court. Although there was no specific indication of any HHS enforcement action against Franciscan, that court granted the permanent injunction.
In August, Trump judge Don Willett, joined by Trump judge Steve Engelhardt and a Bush appointee, affirmed the permanent injunction. The government pointed out that HHS had not even taken a position as to whether, “in any specific circumstance”, the statute could require Franciscan to take the actions they protested. But Willett ruled that the fact that HHS “may” take such action was enough, although even the court conceded that it concerned “hypothetical future” HHS action.
The case may not need to go further, since it concerns only Franciscan and HHS contemplates no action that could violate the injunction. But the willingness of Trump judges to bend the rules in favor of a religious group like Franciscan concerning health care issues remains very troubling.
What Happened in the E-cigarette Case?
Beginning in 2016, the Food and Drug Administration (FDA) has had authority over e-cigarettes and other electronic nicotine delivery systems. The law makes clear that such products can be approved for marketing only if “appropriate for the protection of the public health.” In practice, that means that the products must have a greater effect in reducing actual cigarette use by current smokers than the detrimental effect of attracting new users of “vaping” products, who may then “graduate” to become conventional cigarette smokers.
The FDA has accordingly approved some tobacco-flavored e-cigarettes. But it has refused to approve “fruit-, mint- and candy-flavored” vaping products, which have proven very attractive to young non-smokers. The FDA has found that such vaping “dishes out a double-whammy of detrimental health effects on kids.” Vaping itself “has been associated with direct and profound health consequences,” including lung injuries “and even death.” In addition, those who vape become “substantially more likely to become smokers of combustible cigarettes,” which produce “significant adverse health consequences.
In 2021, the FDA denied applications from six tobacco companies to market non-tobacco-flavored e-cigarettes. They took the case to the Eleventh Circuit, claiming that the decision was arbitrary and capricious because the FDA did not consider their specific plans to market their products to prevent youth use. Trump judge Brasher provided the deciding vote to adopt the opinion of conservative Chief Judge William Pryor that agreed with the companies, set aside the denial orders, and sent the case back to the FDA.
Judge Robin Rosenbaum vigorously dissented. She pointed out that even assuming the FDA should have considered the specifics of the marketing plans, there was “no room for doubt” that the FDA “must deny” the applications under the law. She explained that “none” of the applications suggest “new methods (that the FDA has not already considered and found wanting)” to significantly decrease kids’ access to flavored products, primarily because “most kids get access to vaping products through friends” or social networks, rather than retailers. In similar circumstances, Rosenbaum wrote, both the Fifth and the D.C. Circuits have rejected such efforts to delay or dismiss FDA orders declining to approve such e-cigarettes.
The future of this issue remains unclear. Either the Supreme Court must resolve the split among the courts of appeals, or the FDA must go through the process of re-considering the tobacco companies’ applications. If it denies them again, a substantial risk remains that the Eleventh Circuit will rule in the tobacco companies’ favor. At least at this point, the deciding vote of Trump judge Brasher has clearly harmed efforts under the Biden Administration to help protect public health.