Gov. Kemp, AG Carr Challenge Biden’s Vaccine Mandate for Health Care Workers

Atlanta, GA – Governor Brian P. Kemp and Attorney General Chris Carr today announced the State of Georgia has filed a lawsuit challenging the Biden administration’s vaccine mandate for health care workers. The emergency regulation, issued on Nov. 5, 2021 by the Centers for Medicare and Medicaid Services (CMS), mandates full COVID-19 vaccination for all eligible staff at health care facilities that participate in the Medicare and Medicaid programs by Jan. 4, 2022.

"After healthcare heroes went above and beyond the call of duty to keep Americans safe and healthy throughout the COVID-19 pandemic, Joe Biden is now threatening their livelihood if they refuse COVID-19 vaccination," said Governor Kemp. "Yet another unlawful mandate from this administration will only worsen worker shortages in a critical-need area as we continue to balance the everyday healthcare needs of hardworking Georgians and fighting COVID-19. We will continue to fight this repeated, unconstitutional overreach by Joe Biden and his administration in court."

"President Biden's reckless ‘one-size-fits-most’ approach to governing continues to create immense disruption and uncertainty for Georgia businesses and employees," said Attorney General Carr. "With this latest unconstitutional mandate, the Biden administration is targeting a health care community that is already reeling from the impacts of a global health pandemic. Georgia health care providers, particularly those located in our rural areas, cannot afford to lose workers or lessen care services due to the unlawful actions of the federal government. We will continue to stand up for the rule of law and defend against this blanket mandate as we work to protect the citizens of this state."

The plaintiffs are asking the court to enjoin the U.S. Department of Health and Human Services and CMS from enforcing the mandate on individuals working at Medicare and Medicaid-certified facilities. The lawsuit asserts the vaccine mandate is unlawful and unconstitutional for many reasons.

The mandate:

• Exceeds CMS’s statutory authority under the Social Security Act;
• Involves an unlawful attempt to supervise or control the practice of medicine in violation of 42 U.S.C. §1395;
• Was issued without statutorily required public notice and comment;
• Violates the Congressional Review Act;
• Is arbitrary and capricious;
• Was issued without consulting the appropriate state and local agencies in violation of 42 U.S.C. §1395z;
• Violates 42 U.S.C. §1302, which requires public notice and comment for all new rules that will have a significant impact on rural hospitals;
• Violates the Spending Clause by placing an unconstitutional condition on receipt of federal funds;
• Violates the Anti-Commandeering Doctrine by directing state officers to administer federal law; and
• Violates the Tenth Amendment because the federal government lacks the power to mandate vaccines.

Georgia has joined the states of Louisiana, Montana, Arizona, Alabama, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah and West Virginia in filing the lawsuit with the U.S. District Court for the Western District of Louisiana (Monroe Division).

A copy of this lawsuit can be made available by request to the Office of the Attorney General.

Previously, on Oct. 29, Governor Kemp and Attorney General Carr filed suit in the U.S. District Court for the Southern District of Georgia (Augusta Division) to challenge the vaccine mandate for federal contractors. The plaintiffs in that suit have asked for a preliminary injunction. A hearing on that request is scheduled to take place on Dec. 7, 2021. The initial announcement can be found here.

Also, on Nov. 5, Governor Kemp and Attorney General Carr filed suit in the U.S. Court of Appeals for the Eleventh Circuit to challenge the OSHA vaccine mandate for employers with 100 or more workers and have asked the court to stay the mandate. The plaintiffs are awaiting the court’s ruling on that motion to stay. The initial announcement can be found here.