Vax Mandate Lawsuits


PREMO Member
Jeremy Boreing Explains Daily Wire’s Lawsuit Over Joe Biden’s Vax Order: ‘Grotesque Abuse Of Power’

“We’re not the enforcement arm of the federal government. Forcing Americans to choose between their livelihoods and their freedom is a grotesque abuse of power and we won’t be a party to it,” Boreing said. “We will not incur the cost of implementing this testing regime. We will not incur the liability of inserting ourselves into the private health decisions and information of our employees. Our company was founded to stand against tyranny, and we will.”

The lawsuit does not take a position on whether someone should receive the vaccine or not, only against Biden’s mandate, announced earlier this year and unveiled on Thursday morning. The mandate applies to all companies with 100 or more employees and forces those businesses to police the vaccine status of their employees. The Daily Wire, with over 100 employees, falls under the mandate.

The Daily Wire’s lawsuit seeks to overturn Biden’s executive action, arguing that the order is unconstitutional and that the Biden administration violated federal law in drafting it.
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Why The Daily Wire And ADF Are Partnering To Challenge Biden’s Vaccine Mandate

The vaccine mandate the Biden administration imposed is one of the more egregious abuses of federal power in recent memory. Nowhere does our Constitution confer upon the federal government authority to force private citizens to inject vaccines into their bodies. Nor does it allow the federal government to dragoon private employers, on pain of massive fines, into compelling that same result.

An absence of legal authority, however, seemingly poses no constraint on the administration’s ambition to decide for all Americans how they should protect themselves from COVID-19. When he announced the vaccine mandate, President Biden said his decision was “not about freedom or personal choice.” “My job as president,” Biden said, “is to protect all Americans.”

That gets it backwards. The Constitution confers only select, enumerated powers on the federal government for the very purpose of making space for freedom and self-government. The president’s job is to faithfully discharge his constitutional duties, first and foremost. If he lacks power to take a certain action — no matter how seemingly urgent — it is his duty not to act, generally in deference to the states to whom the Constitution reserves the power to regulate for the health, safety, and welfare of their citizens.
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PREMO Member
DeSantis announces Florida lawsuit against Biden vaccine mandate

During a press conference with state Attorney General Ashley Moody in Tampa, DeSantis said Florida would be joining Georgia, Alabama and private plaintiffs in suing the Occupational Safety and Health Administration (OSHA) over its vaccine mandate for employers.

"This is not consistent with a government of limited and enumerated powers," the Republican governor said. "There is no general police power, there is no power to mandate on the American people from the federal government."

"Individuals should make informed choices about their own healthcare," he added. "They shouldn't be coerced into getting the jab."

OSHA is giving employers with more than 100 employees a Jan. 4 deadline to comply with the mandate and threatening as much as $14,000 per violation for defiant businesses, according to a fact sheet released by the White House Thursday.

Employers with more than 100 employees must ensure that all their workers are either fully vaccinated or subject to weekly testing and mask wearing.

Because it is an OSHA challenge, the lawsuit will go directly to the Eleventh Circuit Court of Appeals, DeSantis said. He said Florida lawmakers will also return for a special legislative session on Nov. 15 to work on a bill to provide protections for Florida employees.


Well-Known Member
Not sure this will work the Judges these days appear to be as marxist as Joe Biden.
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PREMO Member
Tennessee AG Files Lawsuit Against Biden Vaccine Mandate; Others Join

On Friday, Tennessee Attorney General Herbert H. Slatery III announced that his state, along with six others (Kentucky, Idaho, Kansas, Ohio, Oklahoma, and West Virginia), are challenging the Biden administration’s vaccine mandate at the U.S. Court of Appeals for the Sixth Circuit.

Slatery said in a press release:

As we anticipated, the mandate asserts an unprecedented expansion of emergency regulatory powers by a federal agency … Its scope and breadth is only exceeded by its length (about 500 pages). It also fails to consider the many steps already taken to prevent the spread of COVID-19 by individuals, employers and our state.


PREMO Member
Why the Vaccine Mandate Is Illegal and Why It Will Still Be Imposed

But despite solid arguments against the mandate’s legality, it will likely go forward anyway. The injunction imposed by the appeals court yesterday was temporary. At some point, an appeals court will rule that the requirements of the mandate can go forward while the OSHA rule is litigated.

That’s going to take a while. In fact, the delay between cause and effect is part of the Biden administration’s strategy. By the time the issue is decided by the Supreme Court—almost certainly in favor of the states suing the administration—it may well be next fall. The suing states could ask for an expedited Supreme Court hearing, but that’s almost never granted.

By then, the “temporary” legality of the mandate will have resulted in millions of people being forced to get jabbed or lose their jobs. Biden will have accomplished his mission, employers will be relieved of the burden of having to enforce an unpopular rule, and we can all go back to living our normal lives just like we did before the pandemic began, right?

That’s the plan, anyway.

The mandate is illegal because the OSHA standard it’s based on is not being met. The federal government assumes the authority to impose the mandate based on the “general welfare” clause of the Constitution and its clearly defined power to regulate interstate commerce. But the administrative law under which OSHA operates only justifies federal action in the workplace, such as a vaccine mandate, under certain specific conditions.

And the epidemic doesn’t meet them.


PREMO Member
US Federal Appeals Court Freezes Biden’s Medically Coercive Vaccine Mandate

“Courts are skeptical because the law demands it,” the attorneys general wrote in a letter to Biden in September. “To justify an emergency temporary standard, OSHA must determine that ‘employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards…’ and it must conclude that ‘such emergency standard is necessary to protect employees from such danger.’ You cannot plausibly meet the high burden of showing that employees in general are in grave danger.”

Although the Solicitor of Labor Seema Nanda said the Labor Department was “confident in its legal authority” to issue the OSHA-enforced vaccine mandate, Republican-led groups have been questioning and denying its legality since it was implemented on Nov. 4.

“The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” Nanda said in a statement. “We are fully prepared to defend this standard in court.”


PREMO Member

States Challenge Biden's OSHA Mandate

This mandate is unconstitutional, unlawful, and unwise. The federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment. OSHA also lacks statutory authority to issue the ETS, which it shoe-horned into statutes that govern workplace safety, and which were never intended to federalize public-health policy. OSHA’s justification for the mandate is not supported by substantial evidence in the record considered as a whole under 29 U.S.C. § 655(f), as the ETS fails to consider obvious distinctions and critical aspects of the problem. Its unlawful mandate will cause injuries and hardship to working families, inflict economic disruption and staffing shortages on the States and private employers, and impose even greater strains on struggling labor markets and supply chains.

OSHA’s justification for this unprecedented mandate constitutes the quintessential “post hoc rationalization[]” that “cannot be accepted as a basis for review.” Asbestos Info. Ass’n/N. Am. v. Occupational Safety & Health Admin., 727 F.2d 415, 422 (5th Cir. 1984). OSHA did not first discern a “grave danger” to employees and then devise a standard “necessary” to protect them, as the statute requires. 29 U.S.C. § 655(c). Instead, the President dictated his preferred policy to the agency in advance, and OSHA reverse-engineered a justification for that predetermined conclusion. It is a “foundational principle of administrative law” to reject such “impermissible post hoc rationalizations.” Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1907, 1909 (2020). The Court should do so.


PREMO Member

Good Suit Against LA School District's Vaccine Mandate

Plaintiffs, for their Complaint against Defendants, allege as follows:


1. On March 4, 2021, Defendants’ predecessors issued a policy requiring that employees of the Los Angeles Unified School District (“LAUSD”) be vaccinated against COVID-19. See California Educators for Medical Freedom, et al v. Austin Beutner, et al, Case No. 21-cv-2388 (the “Original Lawsuit”). In response, the Original Lawsuit was filed on March 17, 2021. Id. at Ecf. No. 1.

2. On March 18, 2021, in a frankly cynical effort to create a ripeness issue, LAUSD reversed its policy and gave employees the option of regular testing. Ecf. No. 25 at ¶¶76-86. As a result, Defendants’ predecessors argued that Plaintiffs’ allegations relied on a future contingency that might not occur, and that the lawsuit was therefore not ripe for adjudication. Id. at Ecf. 33-1, 41.

3. On July 27, 2021 the Court dismissed the case, without prejudice, based on ripeness. Id. at Ecf. No. 44. “That Defendants were contemplating requiring the vaccine,” the Court concluded, “and then later reversed course and explicitly said they would not be, does not create a ripe case or controversy.”

4. Nevertheless, on August 13, 2021 – a mere 17 days after winning dismissal based on ripeness – Defendants enacted a mandatory “COVID-19 VACCINATION REQUIREMENT FOR EMPLOYEES AND OTHER ADULTS WORKING AT DISTRICT FACILITIES.” (the “Mandate”). See Exhibit “A”, attached hereto. That, of course, was the plan all along. Employees must receive the first dose by October 15, 2021, 2021.1

5. Plaintiffs have been notified that if they fail to comply with the deadline of October 15, 2021, they will be forbidden from returning to work effective October 16 and will be terminated effective November 1, 2021.

6. Prior representations to the Court notwithstanding, Defendants were at least honest enough to call their policy a “mandate.”

7. Plaintiffs assert that Defendants’ Mandate cannot be supported when:

i. Over 99.8% of all those who are infected and ill with COVID survive.

ii. Those who survive obtain robust and durable natural immunity.

iii. The natural immunity so obtained is superior to COVID vaccineinduced immunity.

iv. The COVID vaccines are ineffective against the Delta strain f COVID, which the Center for Disease Control (“CDC”) states is the dominant (>99%) strain throughout the United States.

v. The CDC Director admitted that the COVID vaccines do not prevent infection or transmission of COVID. “[W]hat they [the vaccines] can’t do anymore is prevent transmission.”2

vi. The CDC acknowledged that the vaccinated and unvaccinated are equally likely to spread the virus.3

vii. The vaccines only reduce symptoms of those who are infected by COVID, but not transmission of the virus. They are, therefore, treatments, and not vaccines as that term has always been defined in the law.

viii. In fact, the CDC has actually changed its definitions of “vaccine” and “vaccination” to fit with the currently-available COVID Vaccines. Until recently, the Centers for Disease Control defined a “Vaccine” as: “A product that stimulates a person’s immune system to produce immunity to a specific disease, protecting the person from that disease.”4

ix. The CDC also previously defined “Vaccination” as: “The act of introducing a vaccine into the body to produce immunity to a specific disease.”5

x. Both prior definitions fit the common understanding of those terms. To be vaccinated meant that you should have lasting, robust immunity to the disease targeted by the vaccine.

xi. But on September 1, 2021, the CDC quietly rewrote these definitions. It changed the definition of a “Vaccine” to: “A product that stimulates a person’s immune system to produce immunity to a specific disease, protecting the person from that disease preparation that is used to stimulate the body’s immune response against diseases.” It changed the definition of “Vaccination” to: “The act of introducing a vaccine into the body to produce immunity to protection from a specific disease.”

xii. In other words, the CDC has eliminated the word “immunity” from its definitions of “Vaccine” and “Vaccination.” The CDC did so because it recognizes that the COVID Vaccines do not produce immunity to COVID-19.

xiii. This is a critical factual and legal distinction. Legal authority to mandate medical treatment only derives under public health regulations. As the CDC holds that Delta is the only strain; that the shots do not stop the transmission of Delta; and that vaccination is mere “protection” against a disease and not “immunity” against the disease; there is no public health basis for mandating vaccination.

xiv. The COVID vaccines cause a significantly higher incidence of injuries, adverse reactions, and deaths than any prior vaccines that have been allowed to remain on the market, and, therefore, pose a significant health risk to recipients, who are, by definition, healthy when they receive the COVID vaccines; and

xv. Since, according to the CDC, the COVID vaccines do not prevent the infection or transmission of COVID, while at the same time, also according to the CDC, they result in a massively anomalous (1000% higher) number of adverse events and deaths, there is no justification in the law for mandating them, and LAUSD’s mandate must therefore be struck down.


COVID-19 Is Not Smallpox

A. The Statistics Underlying Defendants’ Justification for the Mandate are Flawed

i. The PCR Test is Flawed

37. The Covid Emergency is based upon statistics that are flawed for at least the following reasons:

i. Every statistic regarding COVID is based upon the PCR test, which is a limited test that cannot, on its own, determine whether a test subject is infected with COVID absent an examination by a medical doctor;

ii. The PCR test is highly sensitive, with the result of the test being dependent upon the cycle threshold (“CT”) at which the test is conducted;

iii. National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, has stated that a test conducted at a CT of over 35 is useless;9

iv. Studies have confirmed Dr. Fauci’s conclusion, showing that tests conducted using CT values over 35 have yielded up to eighty percent (80%) false positives;10

v. Despite this known sensitivity, the PCR tests were mass distributed in the United States without training, were used by technicians who were not made aware of the underlying flaw in the test,11 and were operated at a CT value in excess of 35 routinely, therefore, delivering results that were, according to Dr. Fauci and a broad consensus of experts in the area, useless;12 and

vi. The PCR test is incapable of distinguishing a live particle of a virus from a dead one, and as a result, even a positive test result does not mean that the test subject is infected or contagious with COVID, analogous to a test that could identify car parts (such as an axle, wheels, engine) but not determine if those car parts were in fact, a working car

ii. The Asymptomatic Spreader is a Myth

38. Due to the numerous flaws in the fundamental test upon which all statistics underlying the COVID Emergency are based, and the high level of resulting false positives, many have incorrectly concluded that asymptomatic people, who in the past would simply have been referred to as “healthy people,” are somehow contagious and are spreading the disease.

39. Policy decisions at the state and federal level rest upon this myth. For example, mandatory masking of healthy people is based upon this myth. Social distancing is based upon this myth as well. The policy that perfectly healthy, noncontagious people must be vaccinated to interact with and participate in society is based in large degree upon this myth. With regard to flawed statistics, mass PCR testing of the entire population has been based upon this myth.13 There is no reason to test perfectly healthy asymptomatic people absent the belief that asymptomatic people can spread COVID.

40. However, the assumption that people with no symptoms can spread the disease is false. As Dr. Fauci stated during a September 9, 2020: “[E]ven if there is some asymptomatic transmission, in all the history of respiratory borne viruses of any type, asymptomatic transmission has never been the driver of outbreaks. The driver of outbreaks is always a symptomatic person, even if there is a rare asymptomatic person that might transmit, an epidemic is not driven by asymptomatic carriers.”14

41. Due to the incorrect assumption that asymptomatic people could spread the disease, mass testing has been instituted of the population at large. Due to the numerous flaws in the PCR test stated above, this mass testing has resulted in dramatically inflated case numbers that do not reflect reality and falsely overstate the number of COVID cases.

42. As a result, the data regarding COVID cases being used to shape public policy is highly inflated

iv. The COVID Death Count is Highly Inflated

47. On March 24, 2020, the CDC issued COVID Alert Number 2.15 This Alert substantially changed how the cause of death was to be recorded exclusively for COVID. The modification ensured that in any case where the deceased had a positive PCR test for COVID, then COVID was listed as the cause of death.16

48. Prior to this March 24, 2020, change in procedure, COVID would only have been listed as the cause of death in those cases where COVID was the actual cause of death. If the deceased had a positive PCR test for COVID, but had died of 15 National Vital Statistics System, COVID-19 Alert No. 2 (March 24, 2020), (last visited October 18, 2021). 16 Id. another cause, then COVID would have been listed as a contributing factor to the death, but not the cause.17

49. The 2003 CDC Medical Examiner’s and Coroner’s Handbook on Death Registration and Fetal Death Reporting states that in the presence of pre-existing conditions, infectious disease is recorded as the contributing factor to death, not the cause.18 This was always the reporting system until the death certificate modification issued by the CDC on March 24, 2020.19

50. This death certificate modification by the CDC was not made for any other disease; only COVID. Accordingly, a double standard was created for the recordation of deaths, skewing the data for all deaths after March 24, 2020, reducing the number of deaths from all other causes, and dramatically increasing the number of deaths attributed to COVID.

51. As a result, the COVID death data used to shape public health policy is significantly inflated.20

C. VAERS Reports Point to Significant Levels of Vaccine Injury.

60. As part of the 1990 Public Readiness and Emergency Preparedness Act, the FDA and CDC created the Vaccine Adverse Event Reporting System (VAERS) to receive reports about suspected adverse events that may be associated with vaccines. VAERS is intended to serve as an early warning system to safety issues.

61. It has been well established even prior to COVID that only 1-10% of adverse events are reported.27 This is known as the “Under-Reporting Factor” (URFs). While many reported adverse events are mild, about 15% of total adverse events are found to be serious adverse events.28

62. As one can see from this chart, VAERS reports regarding the COVID vaccines are extraordinarily high.


D. COVID Vaccines Create Immunological Cripples, Vaccine Addicts, Super-Spreaders, and a Higher Chance of Death and Severe Hospitalization

63. The COVID vaccines are not traditional vaccines.29 Instead most carry coded instructions that cause cells to reproduce one portion of the SARS-CoV-2 virus, the spike protein. The vaccines thus induce the body to create spike proteins. A person only creates antibodies against this one limited portion (the spike protein) of the virus. This has several downstream deleterious effects.

64. First, these vaccines “mis-train” the immune system to recognize only a small part of the virus (the spike protein). Variants that differ, even slightly, in this protein, such as the Delta variant, are able to escape the narrow spectrum of antibodies created by the vaccines.

65. Second, the vaccines create “vaccine addicts,” meaning persons become dependent upon regular booster shots, because they have been “vaccinated” only against a tiny portion of a mutating virus. The Australian Health Minister Dr. Kerry Chant has stated that COVID will be with us forever and people will “have to get used to” taking endless vaccines. “This will be a regular cycle of vaccination and revaccination.”30

66. Third, the vaccines do not prevent infection in the nose and upper airways, and vaccinated individuals have been shown to have much higher viral loads in these regions. This leads to the vaccinated becoming “super-spreaders” as they are carrying extremely high viral loads. 31

67. In addition, the vaccinated become more clinically ill than the unvaccinated. Scotland reported that the infection fatality rate in the vaccinated is 3.3 times the unvaccinated and the risk of death if hospitalized is 2.15 times the unvaccinated.32

Vaccine Addicts explains the mental illness perfectly
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PREMO Member
Biden’s Moribund Vaccine Mandate

The decision also declared the mandate “fatally flawed on its own terms,” emphasizing that it purports to “save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat.” This seriously undermined the administration’s claim that the purpose of the mandate is a response to a genuine national emergency: “The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.” This created questions concerning OSHA’s use of the emergency temporary standard (ETS):

As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances.’” Thus, courts have uniformly observed that OSHA’s authority to establish emergency temporary standards under § 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’” But the Mandate at issue here … is a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.

The appeals court goes on to point out that President Biden and OSHA have both undermined the legitimacy of the mandate by contradicting their own prior positions concerning the need to impose such a measure. Judge Engelhardt quotes Biden’s answer to a question posed to him on December 4 of last year concerning whether vaccines should be mandatory: “No, I don’t think [they] should be mandatory. I wouldn’t demand it be mandatory…” The judge also quotes a D.C. Circuit Brief filed by OSHA in May of 2020: “Based on substantial evidence … an ETS is not necessary both because there are existing OSHA and non-OSHA standards that address COVID-19 and because an ETS would actually be counterproductive.”


the poor dad
How does this stay affect federal workers and contractors? Based on what I'm reading, this lawsuit only applies to private industry. Is there any hope for the federal workforce to be included here?


PREMO Member
Oklahoma Bill Would Allow Workers To Sue Employers For $1M Over Harm From Vaccine Requirements

State Sen. Rob Standridge (R-OK) introduced Senate Bill 1106, the “Citizen Health Mandate Protection Act,” on Friday. The bill would allow employees to sue their employers over medical issues related to any operations made mandatory as a condition of employment. If an employee is harmed by a forced medical operation, the employer could be liable for as much as $1 million.

According to the Centers for Disease Control and Prevention (CDC), COVID-19 vaccines have been deemed safe and effective following the evaluation of data from “tens of thousands of participants in clinical trials.” The CDC also says serious “side effects that could cause a long-term health problem are extremely unlikely following any vaccination, including COVID-19 vaccination. Vaccine monitoring has historically shown that side effects generally happen within six weeks of receiving a vaccine dose. For this reason, the FDA required each of the authorized COVID-19 vaccines to be studied for at least two months (eight weeks) after the final dose. Millions of people have received COVID-19 vaccines, and no long-term side effects have been detected.”


Long Haired Country Boy
Ad Free Experience
"Millions of people have received COVID-19 vaccines, and no long-term side effects have been detected.”



PREMO Member
The ruling against Biden’s private-sector vax mandate shows it’s indefensible

But a three-judge panel of the Fifth Circuit Court of Appeals slammed Biden’s ends-justifies-the-means approach. The Constitution limits what the federal government can make people do, even in emergencies.

It’s in the public’s interest, Judge Kurt Engelhardt wrote, to protect “our constitutional structure” and “the liberty of individuals to make intensely personal decisions according to their own convictions — even, or perhaps particularly, when those decisions frustrate government officials.”


And exasperate their liberal media allies. CNN bashed the Fifth Circuit as “notoriously conservative.” Vox dismissed it as a “right-wing panel.” Washington Post columnist Ruth Marcus slammed the judges’ “stingy version of the federal government’s powers” and threw up her hands: “Maintaining our constitutional structure? How about saving lives?

Conspicuously lacking in the left’s response is a legal defense of the mandate. It’s indefensible. Even before Friday’s ruling, White House spokeswoman Karine Jean-Pierre told employers to bulldoze ahead, disregarding legal challenges.

That shows how little the Biden administration and Democrats care about the rule of law and individual freedom.


PREMO Member
The Daily Wire Appears To Be Lead Plaintiff In Fighting Biden Vaccine Mandate In Court

The case challenges the Biden administration’s mandate, which is enacted through OSHA, that forces employers with more than 100 employees to have their employees vaccinated or to conduct regular coronavirus testing.

Bloomberg Law reports:
While the Sixth Circuit won the random draw, the lottery doesn’t necessarily end the jockeying over which court will ultimately hear the case. Parties can petition circuit courts to transfer the case elsewhere.
And no matter what happens at the circuit court level, the U.S. Supreme Court is likely to have the final say on the vaccinate-or-test emergency temporary standard. Yet the appeals court’s decision could set the table for the justices by framing the debate and raising which legal questions will determine the rule’s fate.


PREMO Member
States Sue Biden Admin Over Medicare/Medicaid Vaccine Mandate


1. The Biden Administration is playing statutory shell games with the courts, straining to justify an unjustifiable and unprecedented attempt to federalize public health policy and diminish the sovereign States’ constitutional powers. The Administration has announced three COVID-19 vaccine mandates to—as the President himself has confirmed—increase societal vaccination rates. There’s just one problem: no statute authorizes the federal Executive to mandate vaccines to increase societal immunity. The Administration’s solution? Use statutory schemes never before interpreted to allow federal vaccine mandates to shoehorn the President’s goals into the fabric of American society. In one instance, the Administration grabbed an obscure workplace safety statute to impose a vaccine mandate on 100 million Americans. That mandate suffers from so many patent constitutional and statutory 3 problems that the Fifth Circuit stayed it a day after it issued and reaffirmed its stay within a week. BST Holdings, L.L.C. v. OSHA, No. 21-60845 (Nov. 12, 2021). Second, the Administration tried to use the federal procurement system to impose a vaccine mandate on another fifth of the American workforce. That mandate, too, is already subject to multiple challenges. The third mandate is the one at issue here: the Administration has coopted the Medicare and Medicaid system to impose a vaccine on 17 million healthcare workers.

2. But the Social Security Act focuses on patient welfare and patient access to care. By forcing a significant number of healthcare workers to take the shot(s) or exit the Medicare and Medicaid workforce, CMS’s Vaccine Mandate harms access to (and thus quality of) patient care. This “onesize-fits-all sledgehammer” expressly undermines the Social Security Act’s singular focus on providing access to care. BST Holdings, No. 21-60845, slip op. at 6 (5th Cir. Nov. 12, 2021). By forcing employees to choose “between their job(s) and their jab(s),” id. at 19, the Mandate completely ignores the unprecedented labor shortage prevailing in the healthcare sector and patient wellbeing in favor of the President’s ambition to increase societal vaccination rates.

3. Aside from being fundamentally at odds with the Social Security Act, the Vaccine Mandate suffers from a host of fatal flaws. It exceeds CMS’s statutory authority; violates the Social Security Act’s prohibition on regulations that control the selection and tenure of healthcare workers; is arbitrary and capricious; and violates the Spending Clause, the Anti-Commandeering doctrine, and the Tenth Amendment. Furthermore, CMS flouted the basic procedural requirements that Congress imposed on it, including the Administrative Procedure Act’s notice-and-comment requirement, the Congressional Review Act’s publication-and-review requirements, and the Social Security Act’s consultation and regulatory-impact-analysis requirements. The Vaccine Mandate causes grave danger to the vulnerable persons whom Medicare and Medicaid were designed to protect—the poor, children, sick, and the elderly—by forcing the termination of millions of essential “healthcare heroes.”


IV. CMS’s Claimed Statutory Authority.

47. CMS purports to derive the authority for this unprecedented edict primarily from two statutes that grant it rulemaking authority. See id. at 61567. In truth, the authority those statutes provide stops well short of what would be required to authorize this sweeping mandate.

48. The first relied-upon statute delegates to the Secretary of HHS the authority to “make and publish such rules and regulations, not inconsistent with this chapter, as may be necessary to the efficient administration of the functions with which [he] is charged under this chapter.” 42 U.S.C. §1302(a).

49. The second delegates to the Secretary the authority to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs under” the Medicare program. 42 U.S.C. §1395hh(a)(1). 12

50. Nothing in either statute establishes that the Secretary may mandate vaccines. Nor do the statutes to which they refer—governing the “efficient administration of the [Secretary’s] functions” under the Act and “the administration of the insurance programs” under the Medicare program—supply a basis for mandating vaccines.

51. CMS also invokes a number of additional statutes as purported authority for applying the Vaccine Mandate to certain types of entities. 86 Fed. Reg. at 61567. For the sake of comprehensiveness—and with apologies to the reader—Plaintiff States catalogue those claimed authorities here.

52. First, for Psychiatric Residential Treatment Facilities, CMS invokes 42 U.S.C. §1396d(h)(1)(B)(i), which defines the term “inpatient psychiatric hospital services for individuals under age 21” to “include[] only . . . inpatient services which . . . involve active treatment which meets such standards as may be prescribed in regulations by the Secretary.” This statute implies that the Secretary may create regulations setting “standards” for the “active” inpatient psychiatric “treatment” of individuals under age 21. But a mandatory vaccine requirement for the staff at those facilities is not a “standard” for “active treatment” of the facilities’ patients.

53. Second, CMS invokes 42 U.S.C. §1396d(d)(1) as authority for including Intermediate Care Facilities for Individuals with Intellectual Disabilities in the vaccine mandate. That statute defines those facilities to mean an institution whose “primary purpose . . . is to provide health or rehabilitative services for [intellectually disabled] individuals” if “the institution meets such standards as may be prescribed by the Secretary.” This implies that the Secretary may create standards for the kinds of “health or rehabilitative services” the facility provides. But a mandatory vaccine requirement for the staff at those facilities is not a “health or rehabilitative service[]” for intellectually disabled individuals.

54. Third, CMS claims power under 42 U.S.C. §1395i–4(e) to subject Critical Access Hospitals to the vaccine mandate. That statute says that “[t]he Secretary shall certify a facility as a critical access hospital if the facility—(1) is located in a State that has established a Medicare rural hospital 13 flexibility program . . . ; (2) is designated as a critical access hospital by the State in which it is located; and (3) meets such other criteria as the Secretary may require.” This statute implies that the Secretary may create “other criteria” similar to the two expressly listed requirements. But it does not establish that the Secretary may impose mandatory vaccines on the staff at such hospitals.

The Vaccine Mandate Violates 42 U.S.C. §1395

130. Plaintiff States repeat and incorporate by reference each of the Complaint’s allegations stated above.

131. 42 U.S.C. §1395 provides that nothing in Title 18 of the Social Security Act “shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.” That limit is hardly surprising “given the structure and limits of federalism, which allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (cleaned up); see also id. (noting that federal law “presume and rel[ies] upon a functioning medical profession regulated under the States’ police powers”). 30

132. The Vaccine Mandate violates 42 U.S.C. §1395 by authorizing federal officials at CMS to exercise “supervision” and “control” over the “selection” and “tenure” of employees (including state employees) and other persons “providing health services.” It does so by prohibiting covered healthcare facilities from hiring unvaccinated employees and forcing those facilities to terminate—and thus end the tenure of—unvaccinated employees. 133. The Vaccine Mandate also violates §1395 because it authorizes federal officials at CMS to exercise “supervision” and “control” over the “administration” and “operation” of institutions, agencies, and persons that provide health services (including state facilities and employees). It does so by dictating the hiring and firing policies of those institutions for unvaccinated workers


144. CMS gave two reasons for immediately implementing the vaccine mandate. First, it thought immediate implementation necessary “[d]ue to the urgent nature of the vaccination requirements established in this IFC.” 86 Fed. Reg. at 61573. Second, “to provide protection to residents, patients, clients, and PACE program participants (as applicable),” CMS “believe[d] it is necessary to begin staff vaccinations as quickly as reasonably possible.” Id. In suggesting those reasons, however, CMS ignored that it waited almost two months after President Biden’s directive before it promulgated the IFC to the public. Beyond that, CMS’s finding that the vaccine mandate is necessary was undermined by its delay in adopting it. Vaccines have had a Food & Drug Administration Emergency Use Authorization for almost a year, yet CMS did not impose this mandate until two months after the President instructed it to do so as part of his “six-point plan” to federalize public-health policy—and three months after CMS announced the plan to require nursing home employees to be vaccinated. 34

145. Here, there is no “emergency” sufficient to justify CMS dispensing with proper rulemaking. Florida v. Becerra, 8:21-cv-839-SDM-AAS, 2021 WL 2514138, at *45 (M.D. Fla. June 18, 2021) (concluding that the COVID-19 pandemic was insufficient for “good cause”); Regeneron Pharms. v. HHS, 510 F. Supp. 3d 29, 48 (S.D.N.Y. 2020) (similar).

146. By all measures, the justifications and data cited by CMS are stale, misleading, and onesided. As recently stated by the Los Angeles County Sheriff faced with a local mandatory vaccine order threatening his staff, “[t]his mandate is like putting up storm windows after the storm has passed.” Joshua R. Miller, Los Angeles County sheriff blasts vaccine mandate causing ‘mass exodus,’ N.Y. Post (Oct. 29, 2021),

147. What’s more, the pandemic is a feeble excuse for avoiding transparency and public input considering the year-long public debate over mandatory vaccines. See Chamber of Commerce of the U.S. v. Dep’t of Homeland Sec., No. 20-CV-07331, 2020 WL 7043877, at *8 (N.D. Cal. Dec. 1, 2020) (Chamber of Commerce Order) (rejecting the pandemic as justification for proceeding by interim rule and stating that “even if the problems [the Administration] purport to solve with the Rule[] may have been exacerbated by the COVID-19 pandemic, [the Administration] do[es] not suggest they are new problems”); see also Ass’n of Cmty. Cancer Centers v. Azar, 509 F. Supp. 3d at 496 (“CMS here relies more on speculation than on evidence to establish that the COVID-19 pandemic has created an emergency in Medicare Part B drug pricing sufficient to justify dispensing with valuable notice and comment procedures”); Regeneron Pharms., Inc. v. U.S. Dep’t of Health & Human Servs., 510 F. Supp. 3d 29, 47 (S.D.N.Y. 2020) (rejecting claim that a “new surge in COVID-19 cases … may lead to additional hardship and require immediate action” justifying good cause for interim rule on drug pricing).

148. Finally, considering the magnitude of the impact on the healthcare system, the healthcare labor market, and areas of State authority, it was incumbent on CMS to consult with the States on both the wisdom and implementation of such a far-reaching endeavor. Its failure to do so 35 was not harmless error. See Johnson, 632 F.3d at 931 (“An overreaching harmless error doctrine would allow the agency to inappropriately ‘avoid the necessity of publishing a notice of a proposed rule and perhaps, most important, [the agency] would not be obliged to set forth a statement of the basis and purpose of the rule, which needs to take account of the major comments—and often is a major focus of judicial review.’”).

149. Under these circumstances, the failure of CMS to comply with the APA’s notice and comment provisions is fatal to the CMS interim final rule. Id. at 928-29 (“Without good cause, we must enforce Congress’s choice in favor of the traditional, deliberative rulemaking process.”).

If the ' Emergency ' was so great why did the process take so long, and a Presidential Directive

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