Covid Jab Mandate Foes Cite ‘Major Questions’ to Keep Case Alive

The US Supreme Court’s decision this past summer to curb agency power invalidates the Biden administration’s first-of-its-kind vaccine mandate for health-care workers, a group of Republican-led states told a federal court in Louisiana.

The motion makes the vaccine mandate fight one of the first significant health law cases to invoke the West Virginia v. EPA decision. Legal scholars predicted that decision would make it more difficult for the Department of Health and Human Services to respond to public health threats.

The justices in January, in Becerra v. Louisiana, allowed the Center for Medicare & Medicaid Services’ Covid-19 vaccine mandate to take effect, finding that it’s well within the agency’s statutory authority to issue regulations that protect patient safety.

“There has been a doctrinal sea change” since that decision, 16 states told the US District Court for the Western District of Louisiana on Thursday. They are asking the court to reject a magistrate judge’s report and recommendation that the district court dismiss the states’ challenge.

The Supreme Court’s June endorsement of the major questions doctrine—in an unrelated case over power-plant emissions—”shakes the foundation of CMS’s purported statutory authority,” the states said. Under that doctrine, federal agencies need clear permission from Congress to establish major policies.

The CMS’s Covid-19 vaccine mandate was the first time the agency forced an inoculation of any kind. It was one of the few tenets of the Biden administration’s plan to control the delta variant that survived Supreme Court muster.

A decision that conflicts with the Supreme Court’s earlier reasoning on the vaccine mandate case could unwind decades of statutory authority that allows the government to protect patient safety if other courts adopt it.

The case is Louisiana v. Becerra, W.D. La., No. 3:21-cv-03970-TAD-KDM, Objection to Report and Recommendation 11/17/22.