“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.
The day after another Trump district court judge blocked in ten states a rule by the Centers for Medicare and Medicaid services (CMS) that requires health facilities participating in those two programs to ensure that their health care workers are vaccinated against COVID-19, Trump Louisiana district judge Terry Doughty issued a preliminary injunction that blocked the rule nationwide. Doughty’s rationale for going beyond the 14 states that had sued in Louisiana was the claim that “there are unvaccinated health care workers in other states who also need protection” from being required to be vaccinated in order to continue working with vulnerable Medicare and Medicaid patients. The November 2021 decision was in Louisiana 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, including 14 states led by Louisiana. 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. 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, Trump district judge Doughty granted the request for a preliminary injunction to freeze the rule in the Louisiana case. His arguments were similar to the claims made the day before by a different Trump judge in Missouri in blocking the rule in ten states, and explicitly relied on the criticized claims made by Trump judge Engelhardt in the Fifth Circuit in halting the Biden Administration rule calling for vaccination of workers at big businesses. Like these previous Trump judge rulings, Doughty maintained that Congress and “not a government agency” should have mandated the vaccinations, and suggested that it is “not clear” that “even an act of Congress” containing such a requirement would be constitutional. In purporting to balance the hardships with or without an injunction, Doughty stressed the states’ “quasi-sovereign interests in protecting its citizens from being required to submit to vaccinations” and the possibility of health care staff shortages if people quit their jobs rather than be vaccinated. He gave short shrift to the potential harm to patients from coming into close contact with unvaccinated health care workers, concluding that “maintaining the constitutional structure” and the “liberty of individuals” who do not want the vaccine “outweighs” the government’s interests. In yet another example of a Trump judge second-guessing expert medical conclusions, Doughty claimed that it makes “no sense” to claim that vaccines are needed when “infection and hospitalization rates are [allegedly] dropping,” some vaccinated people “still become infected,” and others are allegedly “developing some form of natural immunity”— medical “conclusions” for which Doughty cited absolutely no evidence.
Doughty went even further than other Trump judges. Although he “considered” limiting his injunction to the 14 states that filed the suit, Doughty instead issued a nationwide injunction that applies to all states, other than the 10 included in the Trump judge injunction the day before, simply because he felt that there are “unvaccinated heath care workers in other states” who he thinks “also need protection” from being required to be vaccinated. This was despite the fact that as recently as last year, when Trump was president, conservatives like the Heritage Foundation strongly criticized nationwide injunctions by single district court judges as “tyranny.”
Like the decision the day before, Trump judge Doughty’s ruling 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 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 recently 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 confirm 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.
Update: In December 2021, a Fifth Circuit panel that did not include any Trump judges partly reversed Doughty’s order and ruled that it could apply only to the states involved in the suit and could not be enforced naitonwide.