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This Monday, the US District Court for the Eastern District of Missouri issued a preliminary injunction on the mandate, which requires health-workers to be vaccinated by Jan. 4, 2022.

This case concerns the Centers for Medicare and Medicaid Services’ (“CMS”) federal vaccine mandate on a wide range of healthcare facilities. Specifically, the mandate requires nearly every employee, volunteer, and third-party contractor working at fifteen categories of healthcare facilities to be vaccinated against COVID. and to have received at least a first dose of the vaccine prior to December 6, 2021

On November 10, Plaintiffs, the States of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire filed a Complaint challenging the mandate. They subsequently filed a motion for a preliminary injunction requesting that this Court issue a preliminary injunction enjoining Defendants from imposing the mandate.

In granting the motion, the Court concluded that Plaintiffs are likely to succeed in their argument that Congress has not provided CMS the authority to enact the regulation at issue here. “[A]n agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.”

The Court agrees Congress has authorized the Secretary of Health and Human Services general authority to enact regulations for the “administration” of Medicare and Medicaid and the “health and safety” of recipients. But the nature and breadth of the CMS mandate requires clear authorization from Congress – and Congress has provided none. “It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened.”.

Even if CMS has the authority to implement the vaccine mandate the mandate is likely an unlawful promulgation of regulations. Both the Administrative Procedure Act and the Social Security Act ordinarily require notice and a comment period before a rule like this one takes effect. CMS concedes it did not follow these requirements but attempts to justify its omission under the “good cause” exception. 86 Fed. Reg. at 61,583. Here, Plaintiffs are likely to succeed in their argument that CMS unlawfully bypassed the APA’s notice and comment requirements.

Use of the “good cause” exception is “limited to emergency situations” and is “necessarily fact-or context-dependent.” Here, CMS’s delay in requiring mandatory vaccination undermines its contention that COVID is an emergency such that it has the “good cause” necessary to dispense with notice and comment requirements.

Finally, the court noted that “Plaintiffs are likely to succeed in establishing that the CMS vaccine mandate is arbitrary or capricious.” …. “In general, the overwhelming lack of evidence likely shows CMS had insufficient evidence to mandate vaccination on the wide range of facilities that it did.” Another example, “CMS rejected daily or weekly testing – an option that even OSHA approved in its ETS – without citing any evidence for such a conclusion.”

While the preliminary injunction applies only in the states that are Plaintiffs in this action, multiple news sources say White House is telling federal agencies they can hold off on suspending or firing federal workers for not complying with the vaccine mandate until after the holidays, according to a memo obtained by ABC News.