While some of you may not want to bother reading this since it’s something that impacts the U.S. and a long read, it’s well worth the read given the underlying principals and mechanics are fairly like what we are dealing with here.

Yesterday, the District Court in Missouri slapped an injunction on Biden’s Centers for Medicare and Medicaid Services (CMS) Mandate, which applies to healthcare workers, this was a separate mandate to the one that was directed at private employers with greater than 100 employees which got quashed earlier in November.

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, an order which wrecked the mandate.

The court focused on 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 the U.S. Congress’ explicit permission. Basically, what the court is saying is you cannot have an unelected bureaucratic agency do what either policy makers, haven’t done or are unwilling to do. 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 of an “emergency”, the court has now put on the record that an “emergency” doesn’t mean citizens lose their constitutional rights. Finally — and most importantly — the Court found that the evidence shows the CMS Mandate is illogical — “arbitrary and capricious”, powerful words from the court.

The court noted, 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 (not sure how that would play out in Canada as our system is different and at this point, we have no provinces opposed to vaccination mandates):

“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.”

The court cited the antique 1905 Jacobson case, which vaccine proponents favoured them, however the court saw it differently, that it really stands for the idea that vaccine mandates are the province of state — not federal — law. The court stated:

“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 went even further and 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.”

Next the court turned its focus on the pretzel logic behind the mandate, the court first noted that CMS admitted it has NO IDEA whether the injections actually work, that’s right CMS representatives admitted under oath to the court that they had 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.”

So, 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.” Finally, some common sense!

Next, the court took apart CMS’s pathetic 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. We all know in the real world; 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 disingenuous 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 overbreadth, the court saw right through CMS’ insincere 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. “

The court also paid particular attention to and noted all the cherry-picking of data/experts 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.”

Sound familiar, that’s been what officials have been doing everywhere, cherry-picking “experts” to tell them what they wanted to hear, that was when they were even willing to listen. 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 in the U.S. 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-on arrival!

From a legal perspective, 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 Biden 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 spread beyond the original ten states? Likely quickly, as the rest of the states now have a complete roadmap to defeating the CMS Mandate.

So, what does all of this mean to British Columbians, well at a minimum it gives us case precedent (even though it’s in the U.S.), where a court has confirmed the following:

1) Bureaucratic unelected government officials cannot implement a draconian policy, unless lawmakers through the passing of laws give them the permission to do so

2) Governments or government agencies in the guise of an “emergency” cannot simply jettison constitutional principals and trample upon the rights of their citizens.

3) Governments and government agencies cannot act in a “capricious and arbitrary” manner, they cannot simply “cherry-pick” facts and must allow for debate and opposing points of view and their policies need to make rational sense

Not only do we need to let our politicians, bureaucrats, union leaders and friends know of this decision but let any lawyers you’ve been dealing with know about it as well, as I’m thinking there is likely to be some “ammunition” they can use as well from this. Once again sorry for the long read, but if you hung in there this far, thanks!