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AG Derek Schmidt petitions Biden administration to repeal healthcare worker vaccine mandate

Release Date: Nov 21, 2022

TOPEKA – (November 21, 2022) – Kansas Attorney General Derek Schmidt is calling on the Biden administration to withdraw its COVID-19 vaccine mandate for health care workers and all related guidance, arguing that the continued efforts to coerce compliance violates the rights of workers and the authority of states.

Schmidt last week joined a coalition of 21 other attorneys general in filing a petition under the Administrative Procedures Act requesting the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services take immediate action to repeal its Interim Final Rule (IFR) and State Surveyor Guidance, which require participating healthcare facilities to “develop and implement policies and procedures to ensure that all staff are fully vaccinated for COVID-19.”

The mandate has violated the rights of healthcare workers and worsened staffing shortages in that sector, especially in rural and frontier states like Kansas. The IFR regulates more than 10 million healthcare workers and suppliers in the United States. Of those, CMS estimated that 2.4 million were unvaccinated when it issued the IFR.

“CMS’s objective is to coerce the unvaccinated workforce into submission or cause them to lose their livelihoods,” the attorneys general wrote. “If CMS succeeds in coercing states to enforce the IFR against their own citizens, these healthcare workers will lose their jobs (or not return if they already have), states will lose frontline healthcare workers, providers, suppliers, and services, and America’s most vulnerable populations will lose access to necessary medical care.”

The vaccine mandate violates the states’ sovereign right to enact and enforce their laws and exercise their police power on matters such as compulsory vaccination and it fundamentally changes the deal under which they agreed to participate in the Medicare and Medicaid programs. Additionally, the attorneys general argue the IFR is arbitrary and capricious, structurally defective, and exceeds CMS’s statutory authority. Constitutionally speaking, it violates the 10th Amendment; Non-delegation, Major Questions, and Anti-Commandeering doctrines; and the Spending Clause.

In November 2021, Schmidt filed suit challenging the CMS mandate. The courts, including the U.S. Supreme Court, declined to grant preliminary injunctive relief, thus allowing the mandate to be in effect while its legality is challenged. The state lawsuit challenging the CMS mandate remains pending in the U.S. District Court for the Eastern District of Missouri, though it presumably would be rendered moot if CMS were to agree to withdraw the mandate as the states now ask.

The petition is the latest action taken by Schmidt to push back against the Biden administration’s insistence on a one-size-fits-all approach to addressing the COVID-19 pandemic. Schmidt has obtained a permanent injunction against a vaccine and mask mandate for all staff, volunteers and children participating in the federal Head Start program. He has also obtained federal court injunctions blocking the Occupational Safety and Health Administration’s vaccine mandate for private employers and the federal contractor vaccine mandate.

Last month, Schmidt joined a coalition of state attorneys general in objecting to an advisory panel of the Centers for Disease Control and Prevention decision to include the COVID-19 vaccination on a list that states often rely upon to determine which childhood vaccinations to require, saying votes taken on the matter were premature.

A copy of the petition sent to CMS can be found at http://bit.ly/3XlvWk9.

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