In an interim final rule with comment published November 5, 2021, the Centers for Medicare & Medicaid Services (CMS) required 21 specified Medicare- and Medicaid-certified providers and suppliers to require their staff to receive the first dose of a two-dose COVID-19 vaccine or a one-dose vaccine by December 5, 2021 and to be fully vaccinated for COVID-19 by January 4, 2022. Attorneys General in four states filed federal lawsuits challenging the mandate on behalf of a total of 24 states. The two cases filed by Missouri and Louisiana resulted in preliminary injunctions, now covering the entire country. The Biden Administration suspended enforcement of the vaccination mandate “so long as court-ordered injunctions remain in effect.”
The Missouri Attorney General filed the first lawsuit, on November 10, on behalf of Missouri and nine other states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming). Issuing a preliminary injunction for only those 10 states on November 29, Federal District Court Judge Matthew T. Schelp ruled that (1) Congress did not grant CMS authority to mandate vaccinations, (2) CMS “improperly bypassed notice and comment requirements” of the Administrative Procedure Act and the Social Security Act; and (3) the mandate was arbitrary and capricious.
In a news release announcing the Louisiana case, filed November 15 on behalf of Louisiana and 11 other states (Alabama, Arizona, Georgia, Idaho, Indiana, Mississippi, Montana, Oklahoma, South Carolina, Utah, and West Virginia), Louisiana Attorney General Jeff Landry said:
“Biden’s bureaucrats at CMS are threatening the jobs of millions of our healthcare heroes who risked their lives last year caring for our neighbors with COVID-19. What’s more: the mandate once again gives more rights and protections to illegal aliens than American citizens. The federal government will not impose medical tyranny on Louisiana’s people without my best fight.”
Issuing a preliminary injunction on November 30 for the states not already covered by the Missouri injunction, Federal District Court Judge Terry A. Doughty ruled for the states on all of their legal theories except the Anti-Commandeering Doctrine. He held (1) CMS did not demonstrate a good cause exception to notice and comment rulemaking required by the Administrative Procedure Act; (2) there was a violation of separation of powers (the law does not “give the Government Defendants the ‘superpowers’ they claim”); (3) CMS failed to comply with federal statutory provisions requiring consultation with state agencies and prohibiting supervision and control over the practice of medicine; (4) the CMS action was arbitrary and capricious; and (5) CMS violated States’ police power, the Spending Clause, and the Tenth Amendment.
Florida filed its case on November 17 solely on its own behalf. The Attorney General said:
“Seeing his job approval ratings plummet and losing control of the media narrative, President Biden, who once lauded these medical professionals as heroes sacrificing their safety to save Americans from COVID, now abandons them in a feeble attempt to score political points at the worst possible time—making another disastrous policy decision based on politics just as pandemic burnout is thinning our health care ranks and creating a dire staffing shortage.”
“Fortunately, the law is on our side and Florida has an Attorney General who is not afraid to push back against unlawful federal overreach. I filed a challenge to end the CMS vaccine rule—to protect doctors, nurses and other medical professionals, as well as the stability of the entire health care industry, against this power-hungry administration’s unlawful mandate that forces Floridians to choose between providing for their families and their health care autonomy.”
On November 20, in the first federal court ruling on the vaccination mandate, Federal District Court Judge M. Casey Rodgers denied the state preliminary injunctive relief, finding that the State had not shown irreparable injury prior to December 6.
A Texas lawsuit, filed November 15 and asserting similar theories to the other cases, is pending. In a Press Release announcing the lawsuit, State Attorney General Ken Paxton said:
“At a time when we need healthcare workers more than ever before, amid a harrowing worker shortage, the Biden Administration has prioritized this unlawful vaccine mandate over the healthcare of all Americans. We need healthcare workers, regardless of their vaccination status, and this decision puts us on track for an impending disaster within the healthcare industry.”
The American Health Care Association (AHCA) released a statement about the injunction issued in Louisiana. AHCA expresses appreciation for the injunction and simultaneously reiterates its support for vaccinations for “as many residents and staff as possible.” AHCA’s president and CEO Mark Parkinson expresses “deep concern[…] that the current mandate issued by CMS will cause nursing homes to lose staff at a time when we are already grappling with a historic labor crisis.” AHCA calls for “a regular testing option for unvaccinated staff.”
December 9, 2021 – T. Edelman
 CMS, “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” 86 Fed. Reg. 61555 (Nov. 5, 2021), https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23831.pdf
 CMS, “Vaccination Regulation: Enforcement of Rule Imposing Vaccine Requirement for Health Care Staff in Medicare- and Medicaid-certified Providers and Suppliers is Suspended so Long as Court Ordered Injunctions Remain in Effect,” QSO-22-04-ALL (Dec. 2, 2021), https://www.cms.gov/files/document/qso-22-04-all.pdf
 State of Missouri v. Joseph R. Biden, Jr., et al, Case No. 4:21-cv-01329-MTS (E.D. Mo. Nov. 29, 2021), https://ago.mo.gov/docs/default-source/press-releases/cms-injunction.pdf?sfvrsn=ed822d9d_2
 Attorney General Jeff Landry, “Biden Attempts To Turn Last Year’s Healthcare Heroes Into This Year’s Unemployed, Attorney General Jeff Landry Fights Back” (News Release, Nov. 15, 2021), https://agjefflandry.com/Article/12978
 Attorney General Ashley Moody, “Attorney General Moody Challenges Unlawful Vaccine Mandate Threatening to Exacerbate Health Care Worker Shortage Crisis” (News Release, Nov. 18, 2021), http://www.myfloridalegal.com/newsrel.nsf/newsreleases/C9F27051EC65B86D852587910059F8C1?Open&
 State of Florida v. Department of Health and Human Services, et al, Case No. 3:21-cv-2722 (N.D. FL, Nov. 20, 2021), https://affordablecareactlitigation.files.wordpress.com/2021/11/fl-v-cms-order-denying-pi-11-20.pdf
 State of Texas v. Becerra, et al, Case No. ____ (N.D. Tex. Filed Nov. 15, 2021), https://www.texasattorneygeneral.gov/sites/default/files/global/images/20211115%20001%20Original%20Complaint.pdf
 “Paxton Files Lawsuit Against Biden Administration’s Vaccine Mandate for Healthcare Workers” (Press Release, Nov. 15, 2021), https://www.texasattorneygeneral.gov/news/releases/paxton-files-lawsuit-against-biden-administrations-vaccine-mandate-healthcare-workers
 AHCA, “AHCA, NCAL Release Statement on Vaccine Mandate Injunction” (Dec. 1, 2021), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCA-Releases-Statement-on-Vaccine-Mandate-Injunction.aspx