Legislative Update from Joey Hensley, 12-8-21

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senator joey hensley

Two significant federal court decisions are delivered this week regarding the Biden Administration’s unconstitutional COVID-19 vaccine mandates

There were two significant federal court rulings this week regarding the unconstitutional COVID-19 vaccination mandates issued by the Biden Administration earlier this fall. The first ruling came out of the U.S. District Court’s Eastern Division of Kentucky to enjoin vaccination requirements for federal contractors and subcontractors in three states, including Tennessee. The second ruling, which also applies to Tennessee, came from the Western District of Louisiana.  That court granted an injunction against the Centers for Medicare and Medicaid Services (CMS) vaccination mandate for health care workers. 

In September, President Biden initiated efforts through a task force he formed earlier this year to require all federal contractors and subcontractors to vaccinate their workers. The Eastern District of Kentucky case challenging the federal contractor mandate was brought by Tennessee, Kentucky and Ohio. 

Among other reasons, the court expressed concern in the ruling that the vaccine mandate is a federal intrusion on powers that are reserved to the states, thus violating the Tenth Amendment of the U.S. Constitution. “The Court is also concerned that the vaccine mandate intrudes on an area that is traditionally reserved to the States,” the ruling said. “This principle, which is enshrined in the Tenth Amendment of the Constitution, states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In addition, the court stated there were statutory and constitutional implications from President Biden exceeding his authority in issuing the mandate under the Federal Property and Administrative Services Act (FPASA). Federal contractors and subcontractors are required to comply with the vaccine mandate or fear losing their contracts. However, FPASA was enacted to promote economy and efficiency in federal contracting. Vaccination requirements have nothing to do with the federal act’s objectives. 

“The Court has serious concerns about the FPASA, which is a procurement statute, being used to promulgate a vaccine mandate for all federal contractors and subcontractors,” the ruling said.

The court was also concerned that such a mandate runs afoul of the Competition in Contracting Act. This act requires federal agencies to provide full and open competition through the use of competitive procedures in procurement of contracts.

The federal government can appeal the preliminary injunction, which would go to the U.S. Court of Appeals for the Sixth Circuit. 

The second case decided this week grants a preliminary injunction that halts a CMS rule requiring COVID-19 vaccinations for the vast majority of healthcare workers. The injunction from the Western District of Louisiana, applies to all but 10 states nationwide, including Tennessee. 

CMS’s mandate requires the staff of facilities which provide services under federal Medicaid or Medicare programs to receive COVID-19 vaccinations. CMS estimates that over 10.3 million health care workers fall under the mandate. The Biden Administration’s hammer under this CMS rule, is that failure to comply will result in penalties up to and including termination of a facility’s Medicare/Medicaid Provider agreement.

The court concluded that CMS exceeded its authority with the rule and did not have good cause to skip the public comment period required in such cases. The judge cited the separation of powers in the U.S. Constitution and the civil liberties of individuals as being at risk. 

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency,” the ruling said. 

Acknowledging a likely challenge to the federal appeals court, the judge went on to say, “This matter will ultimately be decided by a higher court than this one. However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.”

Appeals for the Western District of Louisiana are taken to the U.S. Court of Appeals for the Fifth Circuit. 

Stay tuned for more as both of these cases, which are important to many Tennesseans, proceed.

You May Contact Senator Hensley at

425 Rep. John Lewis Way N., Suite 742

Nashville TN 37243 615-741-3100