Tuesday, November 30, 2021


Copied and pasted from the daily email from Jeff Childers at https://www.coffeeandcovid.com/
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Yesterday, the District Court in Missouri slapped an injunction on Biden’s CMS Mandate, which applies to healthcare workers. While the decision only technically applies in the ten (10) states that are plaintiffs in the case, hospitals in other states should be persuaded by the order, which wrecked the mandate. You’re going to love it.

There are three big themes in the decision. First, the court found that CMS has no authority whatsoever to manufacture such an invasive and draconian requirement without Congress’ explicit permission. The court also found that CMS didn’t follow the rules when it published the new guidance, rejecting CMS’ argument that it just didn’t have time to follow the rules because “emergency.” Finally — and most importantly — the Court found that the evidence shows the CMS Mandate is illogical — “arbitrary and capricious” — for reasons that you be encouraged to hear, and none of which will surprise C&C readers.

The court noted, as I have repeatedly said, CMS has NEVER EVER tried to mandate vaccines before, and the new policy would significantly alter the balance of power between the states and the federal government:

“The regulation at issue alters that balance because it requires vaccination, which CMS has never attempted to do, for millions of individuals who would otherwise be outside the reach of the federal government.”

Continuing the theme, the court noted that if CMS can do this mandate, it can do lots of other things it has never been allowed to do before, things previously always reserved to the states:

“Truly, the impact of this mandate reaches far beyond COVID. CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism, as discussed above.”

For months, I’ve been trying to cut through all the noise around the antique 1905 Jacobson case, arguing that it really stands for the idea that vaccine mandates are the province of state — not federal — law. That’s what convinced the circuit court in my vaccine mandate case, and this court got it:

“Even if forcing the administration of a specific vaccine into the otherwise unwilling, in an effort to protect the recipients of these programs could be a reasonable explanation to justify the extraordinary action—action that long has been the province of the states, see Jacobson v. Massachusetts (1905) —CMS has not shown that it is reasonable in this instance. Rather, it specifically notes that the vaccines’ effectiveness to prevent disease transmission by those vaccinated is not currently known.”

And — never mind CMS — the court even questioned whether CONGRESS could constitutionally impose a mandate even if it wanted to:

“Whether Congress itself could impose the vaccination requirement is a tough question, one that CMS would force to its crisis. But even if Congress has the power to mandate the vaccine and the authority to delegate such a mandate to CMS—topics on which the Court does not opine today—the lack of congressional intent for this monumental policy decision speaks volumes.”

For the record, I believe the answer to the question of whether Congress could constitutionally order a vaccine mandate is “hell no.”

Turning to the loony lack of logic behind the mandate, the court first noted that CMS admitted it has NO IDEA whether the injections actually work:

“Indeed, CMS states that the effectiveness of the vaccines to prevent disease transmission by those vaccinated is not currently known. CMS also admits that the continued efficacy of the vaccine is uncertain.”

You don’t say. In other words, CMS can’t say whether the vaccines work, or if they DO work, how long it will last. This led the court to draw the obvious conclusion that the CMS Mandate is completely, irreparably irrational:

“The Court cannot, in good faith, allow CMS to enact an unprecedented mandate that lacks a rational connection between the facts found and the choice made.”

Next, the court took apart CMS’s silly arguments that testing and PPE wouldn’t work to keep workers safe, even though hospitals have been doing that since day one, finding that CMS didn’t even CONSIDER testing as an option:

“CMS failed to consider or rejected obvious alternatives to a vaccine mandate without evidence. For example, CMS rejected daily or weekly testing—an option that even OSHA approved in its ETS—without citing any evidence for such a conclusion.”

And the Court noticed that CMS pretends like natural immunity doesn’t exist, or worse, is utterly incoherent about natural immunity:

“As another example, CMS rejected mandate alternatives in those with natural immunity by a previous coronavirus infection … [but] it plainly contradicts itself regarding the value of natural immunity. [CMS admitted that:] ‘about 100,000 a day have recovered from infection . . . These … persons … are no longer sources of future infections.’ Such contradictions are tell-tale signs of unlawful agency actions.”

So CMS denied natural infection worked but also said recovered people are no longer sources of future infections. Both can’t be true. Next, the court observed that since the mandate was too broad because it doesn’t really help younger folks that much and applies to workers who don’t even have contact with patients — it therefore seems like CMS is lying about its real motives:

“The broad scope of healthcare facilities covered by the mandate renders it arbitrary. … CMS acknowledges that the risk of COVID to those in the younger age group is markedly smaller … recognizing that risk of death from infection from an unvaccinated 75-to 84-year-old person is 320 times more likely than the risk for an 18- to 29-years old person … [and] the mandate applies to all facilities’ staff equally, regardless of patient contact. CMS provides no reasoned explanation for this overbroad approach, and it further belies its asserted interest in protecting patients from COVID.

Relying on the Mandate’s massive over-breadth, the court saw right through CMS’ stupid argument that all it wants to do is keep patients safe from Covid. In a footnote, the court explained, “This also belies CMS’s asserted interest in protecting patients from COVID, and instead, shows that the mandate’s overbreadth is to increase the national vaccination rate by any means necessary. “

Finally — and this might be my personal favorite part — the court noticed all the cherry-picking that these government officials have been engaged in:

“CMS looked only at evidence from interested parties in favor of the mandate, while completely ignoring evidence from interested parties in opposition. … [the] record shows CMS was unable to adequately balance these reliance interests because it placed a rock on one side of the scale and a feather on the other.

That’s been what officials have been doing right down the school boards, who cherry-picked local “experts” to tell the board whatever it wanted to hear. Anyway, because of the cherry-picking and the lack of any rational connections, the court concluded that the Mandate was completely irrational and therefore probably illegal:

“Plaintiffs likely can show the CMS mandate is arbitrary and capricious because the evidence does not show a rational connection to support implementing the vaccine mandate, the mandate’s broad scope, the unreasonable rejection of alternatives to vaccination, CMS’s inadequate explanation for its change in course, and its failure to consider or properly weigh reliance interests.”

This final finding is incredibly significant. The court is saying that the Mandate even fails rational basis review. “Rational basis” is the EASIEST standard for the government to meet. But when a law is “arbitrary and capricious,” it is not rational, and therefore fails even that minimal standard. In other words, it’s a dead duck. Quack, quack, aargh…

This finding about the lack of rational basis is a killer, and because it is based on factual findings, it will be extremely difficult for the Administration to overturn it on appeal. The appellate court must defer to the District Court on its factual findings, absent clear error. But the District Court carefully cited the evidence it relied on. And the evidence was almost all from admissions by CMS, and not the evidence provided by the states. Because of that, it will be almost impossible for an appellate court to overturn the District Court’s factual findings based on CMS’s own admissions.

How fast will this holding spreads beyond the original ten states? The rest of the states now have a complete roadmap to defeating the CMS Mandate. I think it will spread quickly. Stay tuned."

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