“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.

 

Trump district court judge Matthew Schelp issued a preliminary injunction that halted in ten states a rule by the Centers for Medicare and Medicaid Services (CMS) that requires health facilities participating in those two programs, which serve millions of vulnerable people across the country, to ensure that their health workers are vaccinated against COVID-19.  All ten states are led by Republican governors. The ruling contradicts a decision by a Florida district court judge appointed by President George W. Bush that refused to block the rule. The November 2021 injunction was in Missouri v Biden.

In early November, pursuant to its recognized authority to establish rules for health facilities that want to receive Medicare or Medicaid funding, CMS enacted a rule that requires such facilities to ensure that health care workers who deal with vulnerable patients receive a COVID-19 vaccine. Missouri and nine other states with Republican governors (Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, North Dakota, South Dakota, and New Hampshire) filed suit to challenge the rule. Florida had filed a similar suit, but a district judge nominated by President George W Bush, Casey Rodgers, denied a preliminary injunction against the rule, although that ruling is under appeal and reconsideration. In the Missouri case, 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.”

Trump district judge Schelp in St. Louis nevertheless granted the request for a preliminary injunction to freeze the rule in these ten states. His arguments were similar to the criticized claims made by Trump judge Engelhardt in halting the Biden Administration rule calling for vaccination of workers at big businesses.  Like Engelhardt, and despite the Justice Department’s arguments, Schelp claimed that Congress did not use the “exceedingly clear language” that he thought was necessary to justify the rule and that it was a “tough question  whether Congress itself could “impose the vaccination requirement.”  In balancing the hardships with or without an injunction, Schelp emphasized what he called the harm to the states’ “sovereign interests” in deciding on their own about vaccinations and to the “economies” of the states, and claimed that the public would suffer “little, if any, harm” from the injunction because the effectiveness of the vaccine is not certain, health care harm would flow if workers resign rather than get vaccinated, and overall, the current situation concerning COVID-19 is “still far better than the public faced even just a few months ago.” Schelp said nothing about the Delta and Omicron variants of the pandemic and the harm they have caused or threaten to cause.

There is little question that Trump judge Schelp’s decision will be appealed, and the issue will likely be decided by the Supreme Court. In the meantime, his second-guessing of the expert judgment of health officials that vaccination is critical to protect “patient safety in health-care settings,” including 76,000 health care facilities across the country that serve Medicare and Medicaid patients, threatens serious harm to these interests. The case is yet another example of the importance, as part of our fight for our courts, of ensuring that the Senate will confirm fair-minded judges who will appropriately respect the Constitution, the laws passed by Congress, and expert agency judgment on crucial issues like COVID-19.