5th Circuit Questions Whether it Should Address Anti-Commandeering Claim on Remand from Supreme Court's Decision to Uphold HHS Vax Requirement

In February, 2022, the U.S. Supreme Court ruled that CMS was within its statutory authority to order that health care workers at hospitals and other categories of health care providers receiving Medicare/Medicaid funds were required to obtain COVID vaccinations and adopt infection control policies. In doing so, it stayed a preliminary injunction which the 5th Circuit Court of Appeals had issued blocking enforcement of the CMS mandate in affirming a lower district court's decision.

The question which both the Biden administration and the Louisiana Solicitor General, on behalf of a 14 state coalition, have raised is whether the 5th Circuit should simply "vacate and remand" to the District Court or also provide an opinion or guidance on whether the CMS rule violated the Anti-Commandeering Doctrine. This Doctrine prohibits the federal government to "command" state governments to abide by a federal regulatory program. 

The Department of Justice contends that the U.S. Supreme Court addressed this question on appeal when it ruled that the CMS rule was not coercive and that the 5th Circuit should so state in an opinion when remanding the case to the District Court. The Department further argued that the HHS mandate applied to all private and state owned or operated health care facilities and therefore the Doctrine does not apply. The coalition disputes this argument and instead wants to amend its complaint to argue that the additional CMS requirement that surveyors report whether Medicare and Medicaid providers are complying with the mandate and that they not enter facilities if not fully vaccinated violates the Doctrine. These particular arguments were not addressed in the original complaint.