“When all you have is a hammer every problem looks like a nail” as the old saying goes. For the Federal Government, there appears to be no statute the Office of Legal Counsel can find that does not allow it to hammer a vaccine mandate on the populace upon threat of loss of their livelihood. This week NCLA, in Vanderstelt v. Biden, filed a class action in the Western District of Michigan to enjoin the Government from enforcing this “mandate.”

The Government relied on the Federal Property and Administrative Services Act (“Procurement Act”) of 1949 created “to provide the Federal Government with an economical and efficient system for” procurement. 40 U.S.C. § 101. There were other statutes that make clear that Congresses’ main concern in procurement is to open up the entire panoply of the vast American economy to the Federal Government. It was not implemented to control American workers’ health care decisions.

Nonetheless, the President issued Executive Order 14042 creating a Task Force to direct the Federal Government’s anti-Covid activities. That Task Force then created “guidance” telling all the agencies what to do. On September 24, 2021, the Task Force issued guidance that requires all “covered contractor employees” to be fully vaccinated by December 8, 2021. Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sep. 24, 2021) (“Task Force Guidance”) (Attachment B). The term “covered contractor employees,” “includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” Those deadlines were later changed but the directives remain.

Action on these mandates is happening in Courts all over the country. Today in the Supreme Court the OSHA vaccine mandate and the health care workers vaccine mandate are before the Supreme Court on preliminary injunction. The Supreme Court is, in part, reviewing the 6th Circuit’s vacating a stay on the OSHA vaccine mandate that the 5th Circuit had put in place. The panel, with a spirited dissent by Judge Joan Larsen, determined that the OSHA statute likely gave the Department of Labor the power to require all employers who have more than 100 employees to make sure they are all vaccinated. Well, if the federal government is empowered to have any corporation fire its employees if they are not vaccinated surely it can force corporations it contracts with to do so? This case must be a hopeless effort in the 6th Circuit? A Man of La Mancha tilting at windmills given this “clear precedent?”

Not so fast! The same 6th Circuit, but a different three-judge panel, upheld a stay of the federal contractor mandate two days after NCLA filed suit on the issue! This time Judges Suhrheinrich and Bush over a spirited dissent by Judge Cole upheld a stay of the federal contractor vaccine mandate. In fact, the majority cited the OSHA case in their opinion favorably. I think if done on twitter this would be called “subtweeting.” The court in the Contractor Mandate case even cited Jacobsen v. Massachusetts, to cast doubt upon, rather than uphold a vaccine mandate! This is a judicial jujitsu one does not see every day.

What the Court said was that health and safety are normally and in the first instance the provenance of the states. That is why Jacobsen upheld Massachusetts’ smallpox vaccine mandate law. The Contractor Mandate by the Federal Government, on the other hand, impinged on these state duties and relied on laws that did not clearly grant such power to the agency. The Court then went through all the standards for obtaining injunctive relief and said the Government was unlikely to win on any issue! It was not likely to win on the argument that the States could not bring this case because they all had the right to defend their sovereign rights. It was not going to win on the merits because the Procurement Act provided no such power. It could not show it was harmed by the stay because it had already delayed the OSHA mandate which is similar for a month and a half so how could there be much harm to it, and in any event, another court in Georgia had stayed the whole mandate nationwide anyway. The plaintiffs, States, and sheriff offices that contracted with the Federal Government would be badly harmed as they lost employees and had to suffer irrecoverable compliance costs. Finally, the public interest was “equivocal at best.” The benefits of increased vaccination may be outweighed by the contraction of an already overburdened supply chain.

The stark differences between Democrat- and Republican-appointed judges need to be solved by the Supreme Court. To my knowledge, no Democrat-appointed judge has struck down a vaccine mandate for failure of federal power under any statute (as opposed to religious exemptions). Judge Roberts’s claim that there are no Republican or Democratic judges is being put to the test here. On the role of the states and the nature of federal power, I cannot find any Democrat-appointed appellate judge who has sided with a challenger to federal power. The 6th Circuit is apparently riven over the issue. I had predicted that the 6th Circuit would not lift the 5th Circuit’s OSHA stay precisely because of the overpowering reluctance of most appellate judges to teach litigants the lesson of “different court, different result” in the same case. Now it is the same court, similar case, different result. Those litigants who asked for an en banc hearing on the OSHA vaccine mandate are being proved prescient.

At the end of March 2021, New York Governor Andrew Cuomo announced that he was launching the nation’s only Vaccine Passport Program. In order to gain entry to venues that host large-scale events, including sports stadiums and concert halls, people must scan proof that they have had a COVID-19 vaccine or recently tested negative for the virus. Medium-sized venues—for instance, those that host performing arts or catered events—can operate at increased capacity if they require patrons to submit such evidence. Although the Governor repeats the word “voluntary” ad nauseum when describing the program, New Yorkers should not be fooled. The Program is anything but voluntary: New Yorkers are deprived of their basic constitutional rights if they do not participate.

Initially, the Governor does not have the authority to instate the Vaccine Passport Program. Weeks before the program commenced, the New York legislature rescinded the emergency powers it had granted the Governor a year prior authorizing him to unilaterally issue directives to mitigate the spread of the coronavirus. Noting that the state had entered the “possibly waning days of the pandemic,” the Legislature explained that “it is time to restore the pre-pandemic balance of power of the governor and legislature.” But in typical Cuomo fashion, the Governor circumvented the constitutional separation of powers and imposed invasive directives on the people of New York with zero legislative oversight.

The Program would not pass constitutional muster even if the Governor had implemented it through the proper channels. Both the First Amendment to the U.S. Constitution and Article I § 9 of New York’s Constitution guarantee individuals the right to assemble. Cuomo, and his Vaccine Passport Program, reframes that right as a privilege, demonstrating an utter lack of regard for constitutional rights, which are not fair-weather privileges to be bestowed and confiscated at the Governor’s discretion.

Various statements make yet more evident that the Governor lacks basic knowledge of the rights and freedoms enshrined in the Bill of Rights. He has declared, for instance, “if you’re unvaccinated, that’s your choice, but you can’t go into the Radio City Music Hall with vaccinated people” and that “if you are vaccinated, there are more opportunities for you. You’re going to see venues opening up with vaccinated sections and unvaccinated sections. And you’re going to have more of a chance to participate in activities and resume life.” No matter how many times the Governor reiterates that the program is “voluntary,” these remarks constitute further evidence that the Vaccine Passport Program is the antithesis of what it purports to be.

Cuomo’s dystopian program also infringes upon New Yorkers’ rights to be free from unreasonable searches and seizures under the Fourth Amendment of the federal constitution and Article I § 12 of the state constitution. Numerous courts have recognized that people have a reasonable expectation of privacy in their medical records, meaning that the Governor cannot compel them to divulge such information in order to participate in public life. And while the Governor has claimed that the Vaccine Passport Program “has nothing to do with government,” the state is obviously coercing businesses into implementing the program and using private actors to do what it cannot. That makes this state action, implicating the Fourth Amendment and state equivalent.

The Governor appears unaware of or unconcerned with the fact that the COVID-19 vaccines have been approved only pursuant to an Emergency Use Authorization (EUA). In granting authorization for emergency use, the FDA concluded that the known benefits outweigh the known risks after a few months of clinical trials. The standard is much higher for medical products to receive full FDA approval. In order to obtain such approval, a vaccine must be rigorously tested and monitored for an extended time period. Crucially, the EUA statute mandates that potential recipients be informed of the risks and benefits and that they have the option to accept or refuse the treatment. The coercive nature of Cuomo’s Vaccine Passport Program unequivocally flies in the face of the language and spirit of the EUA statute. The Supremacy Clause of the U.S. Constitution establishes that federal laws are “supreme” and preempt conflicting state laws. Since the Vaccine Passport Program contravenes the federal EUA statute, it does not withstand constitutional scrutiny.

Governor Cuomo’s authoritarian tendencies have been on full display for the past 15 months, and nothing exemplifies that reality more than his Vaccine Passport Program. The Governor is under the mistaken impression that he can control the lives and personal health decisions of millions of New Yorkers and that the best way to do so is coercing them into receiving a vaccine. In the long run, though, these measures are likely to backfire, as they almost certainly will manifest in a breakdown in trust between the public and authorities. But Cuomo is far too power-hungry to consider the implications of his actions—fostering opposition to public health efforts and expediting the derogation of our core civil liberties. So far, New Yorkers are letting him get away with it.

Photo: Plaintiff Dr. Stephen Skoly

“[People] it has been well said, think in herds; it will be seen that they go mad in herds,
while they only recover their senses slowly, one by one.”
― Charles MacKay, Extraordinary Popular Delusions and the Madness of Crowds (1841)

Proving the truth about going “mad,” Rhode Island, in response to the COVID-19 Delta variant, enacted an excessively broad vaccine mandate for health care workers. As should have been foreseen, but was not (as is typical of political actions taken in fear and haste), the mandate has harmed the public: The termination of workers unwilling to be vaccinated has created staffing shortages so critical that Rhode Island has been forced to allow COVID infected workers to treat vulnerable patients. A victim of that mandate―the dental surgeon Stephen T. Skoly, Jr. of Cranston―is now testing in federal district court the lawfulness of Rhode Island’s conduct.

Dr. Skoly once ran a robust dental and surgical practice. He and his five surgical assistants daily treated forty patients. Dr. Skoly never charged patients in need and was (and is) known in the community as a doctor who provided pro bono care. He was also the dental surgeon for the Eleanor Slater Hospital (Rhode Island’s psychiatric rehabilitative hospital) and the Adult Correctional Institute, the State penitentiary in Cranston.

After the March 2020 COVID-19 lockdowns, Dr. Skoly and his staff continued to treat patients in person—the only way that surgical procedures can be performed. They engaged in scrupulous masking and other hygienic requirements. The precautions worked: Dr. Skoly is not aware of a single patient testing positive for COVID-19 as a consequence of his treatment by Dr. Skoly. The doctor himself was not so fortunate. He contracted COVID-19 in 2020.

In August 2021, the Governor, through the Rhode Island Department of Health (RIDOH), promulgated an emergency regulation requiring all health care workers to be vaccinated against COVID-19 by October 1, 2021.

Dr. Skoly could not comply. He has a history of Bell’s palsy, a facial paralysis that is a known risk of COVID-19 vaccination. According to the scientific literature, Bell’s palsy paralysis is a virus that is “dormant” in a person’s body. Dr. Skoly did not fear that he might suffer Bell’s palsy for a first time, or think that a general fear of Bell’s palsy should exempt him, or anyone, from the vaccine mandate. However, based on conversations with his physician, and his own reading, he had a specific, science-based fear that vaccination would re-ignite the paralysis dormant in his body, resulting in a potentially permanent paralysis. The Rhode Island vaccine mandate allowed for a limited number of narrow medical exemptions. The exemptions did not include a prior history of Bell’s palsy paralysis.

On September 30, 2021, Dr. Skoly discussed his decision to not be vaccinated, and his concern about Bell’s palsy paralysis, with a journalist, who reported the conversation in a news article. The next day, the RIDOH issued a Compliance Order directing Dr. Skoly to cease practicing.

The adverse consequences for Rhode Island were immediate. In a State with a desperate shortage of dental surgeons, Dr. Skoly’s distinguished medical career was ended. His ten employees became unemployed. His hundreds of patients―eight hundred private patients a month and dozens of State patients―were deprived of medical care.

After failed attempts to convince Rhode Island to allow him to treat his patients, Dr. Skoly has been forced to go to the court to vindicate his and his patients’ rights.

The sole justification of the health worker vaccine mandate is the protection of the vulnerable patient—that the health care worker does not infect the patient. Although Dr. Skoly with his history of Bell’s palsy paralysis did not qualify for a medical exemption, Rhode Island has granted 365 vaccine exemptions to other health care workers. The exemption allows these 365 unvaccinated workers to work in the immediate physical proximity of the vulnerable patient. The only safety requirement imposed on these unvaccinated workers―allowing them to keep their employment while protecting the patient―is that the exempt, unvaccinated worker is N95 masked in the patient’s presence. In other words, Rhode Island has determined that, in terms of patient safety, N95 masking is a full and acceptable substitute for vaccination.

Dr. Skoly is willing to wear an N95 mask (which he always does anyway as a surgeon). It is an indefensible and irrational denial of Dr. Skoly’s right to the Equal Protection of the Law that Rhode Island allows 365 workers to continue in their livelihoods so long as they are N95 masked, while ending Dr. Skoly’s professional career even though he is willing to be N95 masked. This issue has been presented to the federal district court.

Rhode Island has also violated Dr. Skoly’s right to Due Process of Law. Dr. Skoly has a valid medical reason to forego this vaccine. To require Dr. Skoly to choose between vaccination (and potential paralysis) and his livelihood is cruel—and a violation of Due Process. Imposing this choice on Dr. Skoly is also not necessary to protect the public: In terms of patient protection, the State’s accepted substitute of N95 masking is available.

In addition to N95 masking, in terms of patient protection, Dr. Skoly is COVID-19 recovered. He has natural immunity which, as the federal government has finally acknowledged, is as good if not better than vaccination in terms of lowering the risk of infecting third parties. As the Centers for Medicare and Medicaid Services has acknowledged, the naturally recovered are “no longer sources of future infection.”

Though people go mad in herds, they ultimately “recover their senses slowly, one by one.” Whether Rhode Island is at the stage of slow recovery is before the court. If so, Dr. Skoly is confident that he can re-assemble a skeleton staff, and begin performing the most necessary surgeries (for all patients, including those at Eleanor Slater and the penitentiary), within 48 hours of the issuance of a TRO. He will prioritize treatment to the most needy. Hundreds of patients are praying for his success.