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High Court Vaccine Mandate Case Puts Agency Power to the Test (1)

Dec. 29, 2021, 10:45 AMUpdated: Dec. 29, 2021, 2:59 PM

The power of a federal health agency to make critical decisions could hang on whether the U.S. Supreme Court allows the Biden administration to enforce its vaccine mandate for health-care workers while lawsuits unfold.

The Centers for Medicare & Medicaid Services’ Covid-19 vaccine mandate is the first time the agency forced an inoculation—wading into territory that is usually governed by individual states. The action was meant to create a federal standard to replace the patchwork of state laws that either mandated the vaccine or banned employers from requiring it.

The rule was designed to protect health-care workers and patients across the U.S. from coronavirus surges. But according to four lawsuits backed by 26 states, the mandate will cause health-care workers to leave the industry in droves and worsen staffing shortages in facilities packed with patients.

The Supreme Court will hear oral arguments Jan. 7 on the Biden administration’s request that the court lift two lower court injunctions that have left the CMS unable to enforce the mandate in half of the U.S. The justices will also consider a separate rule for employees at large businesses issued by the U.S. Occupational Safety and Health Administration.

If the justices side with the states, it could mean that any time an agency “does something big and important, it needs explicit congressional authorization,” Dorit Reiss, a professor at the University of California Hastings College of Law, said. That would have a lasting impact on the CMS’ ability to safeguard public health moving forward.

Eyes on Supreme Court

Having an oral argument for an emergency application “is almost unheard of,” Sean Marotta, a partner at Hogan Lovells, said. The decision signals the influence massive public interest on both sides of the issue can have on the Supreme Court.

The justices could lift the block on enforcement that the Biden administration said has jeopardized the health of patients and staff. The Supreme Court could also opt to block enforcement across the U.S., which the states suing said would protect health-care facilities from losing workers.

The highest court could also leave the stay as is, which is “somewhat unpalatable, because the rule can’t be constitutional in half of the states and unconstitutional in the other half,” Brian Dean Abramson, who teaches vaccine law at Florida International University College of Law, said.

The CMS announced late Tuesday that it will begin enforcing the mandate in the states where it is not enjoined. Health-care workers in those states will need to get their first dose of a vaccine by Jan. 27.

The most important thing the CMS needs to do to get the justices to lift the injunctions is convince them that its argument is likely to succeed, Marotta said.

“If the rule remains enjoined during this winter’s anticipated Covid-19 surge, hundreds and potentially thousands of patients may die at hospitals, nursing homes, and other facilities participating in Medicare and Medicaid as the result of Covid-19 infections transmitted to them by staff,” U.S. Solicitor General Elizabeth Prelogar said in a pair of courtfilings.

It’s impossible to know what the justices will decide. The fact that lower courts have blocked the mandate means a win for the states at the Supreme Court is not out of the picture, LaKeisha M.A. Caton, counsel at Pryor Cashman LLP, said.

There is “a subset of judges who believe that administrative agencies have too much power,” Marotta said. Three justices will most likely uphold the mandate, and three will most likely strike it down. All eyes are going to be on Justice Amy Coney Barrett, Justice Brett Kavanaugh, and Chief Justice John Roberts, Marotta said.

The justices recently upheld several state mandates, but a state’s power to impose a vaccine mandate is much more clear, Sharona Hoffman, a professor at the Case Western Reserve University School of Law, said.

All of the justices are vaccinated, and no justice wants to “take measures to prevent the pandemic from ending,” Abramson said.

On the Merits

The justices’ opinion on how likely it is that the CMS’ argument succeeds “is often a strong signal of how the judges will rule in their final decision on the merits,” said Aaron Siri, managing partner at Siri & Glimstad LLP, a firm that has challenged several vaccine mandates in court.

Challengers to the rule have homed in on a few arguments, Reiss said: that Medicare and Medicaid can’t set conditions for facilities to get funding, that agencies need congressional authorization to make significant and unprecedented decisions, and that the CMS needed to give impacted people time to submit comments before the rule took effect.

“The grounds on which the emergency rule is likely to be struck down is that CMS doesn’t have the statutory authority to adopt this regulation,” Siri said.

Other health-care and employment lawyers have said the CMS has clear authority to regulate conditions of participation. “This is not trivial. This is a matter of life and death,” Hoffman said.

The CMS’ choice to forgo the notice-and-comment period is a common sticking point. It’s hard to argue that the public health emergency necessitated a shortened rulemaking timeline when the administration waited so long to impose the mandate in the first place.

“Those vaccines became available a long time ago,” Sarah Coyne, a partner at Quarles & Brady LLP, said. “I am not sure that it’s going to stand without CMS having to go back through the notice and comment period,” Coyne said.

Whatever the outcome signals, litigation will continue. “Neither side appears likely to willingly lay down their pens on this one,” Siri said.

Health-Care Worker Limbo

Health-care workers in states that don’t independently mandate the vaccine have been in limbo since the rule started unraveling in late November. Fast-changing state and federal guidance “is never a good thing,” Hoffman said.

The CMS mandate is a temporary rule that could be replaced by a final rule that responds to feedback received after the rule took effect. If that happens, “we’re back to square one,” and any litigation would reset, Marotta said.

“This is the first step in a waltz,” and the opinions will likely “telegraph where the justices ultimately intend to go,” Abramson said.

(Updated with CMS decision to begin enforcing the mandate in the ninth paragraph.)

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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