Biden's 'Path Out of the Pandemic' Imperiled by Multiple Court Decisions

The vaccine mandate that applies to federal contractors included in President Biden's COVID plan announced in September to slow the Delta surge was halted by a federal judge in Kentucky. That's the third requirement to be paused, leaving only one.

December 5, 2021, 5:00 AM PST

By Irvin Dawid


An image of President Joe Biden at a meeting in the White House while wearing a mask in February 2021.

BiksuTong / Shutterstock

 Judge Gregory F. Van Tatenhove of the United States District Court for the Eastern District of Kentucky made clear at the top of his 29-page ruling [pdf] what the issue before his court was not about.

"'This is not a case about whether vaccines are effective. They are,' Van Tatenhove wrote," reported Austin Horn for the Lexington Herald-Leader on Nov. 30.

“Nor is this a case about whether the government, at some level, and in some circumstances, can require citizens to obtain vaccines. It can.”

He said that the question before him was a narrow one: whether or not Biden had the authority to impose vaccines on the employees of federal contractors and subcontractors. “In all likelihood, the answer to that question is no,” Van Tatenhove wrote.

More specifically, the issue that Van Tatehnove ruled on was whether the executive order that Biden issued on Sept. 9  requiring contractors and subcontractors of the Federal Government to be vaccinated against COVID-19 "exceeded his delegated authority under the Federal Property and Administrative Services Act (FPASA)."

It was for that reason that the judge granted Kentucky Attorney General Daniel Cameron the preliminary injunction he requested when he filed his lawsuit with two other Republican attorneys general from Ohio and Tennessee against the Biden Administration on Nov. 4.

Limited ruling

Unlike the preliminary injunction issued the same day by a federal district court judge in Louisiana that applied nationwide to healthcare workers at facilities that participate in the Medicare and Medicaid programs, the ruling by Van Tatehnove applies only to federal contractors and subcontractors working in Kentucky, Tennessee, and Ohio.

Spotlight on the state attorney general

The decision is a big win for Cameron, "the first African American independently elected to statewide office in Kentucky's history and the first Republican elected to the Attorney General's office since 1948," according to his webpage.

Reporting on the election results on Nov. 6, 2019,  Daniel Victor of The New York Times wrote, "Mr. Cameron, a former football player at the University of Louisville, overcame accusations that he was too inexperienced for the job, having graduated from law school just eight years ago."

Vaccine requirements not holding up well

The only vaccination requirement included in the "Vaccinating the Unvaccinated" prong in President Biden's six-prong "Path out of the Pandemic" unveiled on Sept. 9 (see related post) that remains in effect applies to federal workers, although that executive order, too, has been the subject of litigation.

"At least three lawsuits are pending against the mandate, with initial rulings in two," reported Washington Post correspondents Eric Yoder and Lisa Rein on Nov. 29.

In each, a judge refused to temporarily block the order, saying employees have not yet experienced harm to their careers for not being vaccinated.

Scorecard

It can be difficult to keep track, so here's a coronavirus vaccination scorecard for the three requirements in the "Vaccinating the Unvaccinated" prong of the White House's Path Out of the Pandemic.

  • Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly: Two court cases on Nov. 6 and Nov. 12 by the Fifth Circuit Court of Appeals in New Orleans paused the OSHA rule. It will be heard by the Sixth Circuit Court in Cincinnati.
  • Requiring Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government: Four court cases. As noted above, the contractor provision was paused, but the Biden administration won two of the three cases against the federal worker provision. Outcome pending in the third.
  • Requiring COVID-⁠19 Vaccinations for Over 17 Million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings: Two court cases heard by district court judges in Louisiana and St. Louis – both paused the rule.

Scorecard to date: Two wins and five losses as of Nov. 30.

Hat tip to Kaiser Health News.

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