A federal appeals court gave the Biden administration a partial win in the federal government’s efforts to require Covid-19 vaccines for certain health care workers.
The 5th US Circuit Court of Appeals issued an order Wednesday effectively allowing the mandate to be enforced in about half the states in the country.
The issue is likely to eventually be taken up by the Supreme Court.
The vaccine policy in question was rolled out by the US Department of Health and Human Services’ Centers for Medicare & Medicaid Services, which sought to require the Covid-19 vaccine for health care workers at certain providers that participate in Medicare and Medicaid.
Two other major Biden vaccine policies – one dealing with federal contractors and another aimed at companies with 100 or more employees – have also been halted by courts.
In its order Wednesday, the 5th Circuit hinted at the likelihood that the Supreme Court will ultimately have to resolve the legality of the health care worker mandate, calling it an “issue of great significance currently being litigated throughout the country.”
“Its ultimate resolution will benefit from ‘the airing of competing view’ in our sister circuits,” the 5th Circuit said in its order, which was issued by a panel made up of two Democratic appointees and one Republican appointee.
The mandate had previously been frozen nationwide by federal judge in Louisiana, whose order followed the move by a federal judge in Missouri that blocked the mandate in 10 states. On Monday, the 5th Circuit – faced with a request by the Justice Department to reinstate the mandate – said that the hold on the mandate will remain in place in the 14 states that brought the challenge in Louisiana.
However, the appeals court cast doubt on the rationale for freezing the policy nationwide.
The 5th Circuit order did not disturb the separate move by the Missouri judge to block the mandate in the 10 states in the challenge to the requirement that was brought in Missouri. That order was recently left in place by the 8th US Circuit Court of Appeals. A third appeals court has signaled that it believes the mandate to be lawful.
The states where the CMS mandate is currently on hold, under the orders of the 5th and 8th Circuit, are: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire.
Legal fight continues over Biden rules for large employers
The Biden administration on Wednesday also secured a procedural victory in its fight to reinstate its vaccine-or-testing policy for large companies, which the government has sought to implement through the Occupational Safety and Health Administration.
The OSHA policy remains blocked for now, but the 6th US Circuit Court of Appeals rejected a maneuver by the mandate’s challengers that would have decreased the likelihood of its revival.
The lawsuits targeting the OSHA policy were consolidated before the 6th Circuit, but not before the requirement was frozen nationwide in November by a 5th Circuit panel (made up of a separate set of judges than the judges who weighed in on the health care worker mandate Wednesday). The Justice Department is now asking the 6th Circuit to wipe away that ruling – a request that the appeals court has not issued a decision on.
Meanwhile the mandate’s opponents sought to have the challenge reviewed by the full slate of judges on the 6th Circuit, rather than the type of three-judge panel that usually reviews such disputes at this stage of the litigation. Getting the case before the full court – or “en banc” – would have put the challengers on friendlier playing ground, as 10 of the court’s 16 active judges were appointed by Republican presidents.
However, on Wednesday the 6th Circuit rejected that request, keeping alive the possibility that the Biden administration draws an appellate panel made of judges more sympathetic to its OSHA vaccine policy.
The full court voted 8-8 on the question of going en banc – with the tie keeping the case in front of a three-judge panel for now.