The CMS Vaccine Mandate As Applied To State Employers
Earlier today, I wrote about possible challenges to the OSHA vaccine mandate. But there is another element to the package. According to reports, CMS has threatened to withhold federal funding from hospitals and other health care facilities that do not impose vaccine mandates. These institutions could lose Medicaid and Medicare funding.
Many states operate nursing homes and other facilities. Therefore, this threat to withholds funds implicates the limits of the federal spending power. And once, again, NFIB v. Sebelius becomes relevant. Governor Noem of South Dakota issued a cryptic tweet, threatening to sue President Biden. Perhaps fittingly, this case could be a redux of another South Dakota case, South Dakota v. Dole.
South Dakota will stand up to defend freedom. @JoeBiden see you in court.
— Governor Kristi Noem (@govkristinoem) September 9, 2021
South Dakota v. Dole identified four, and really five limits on the federal spending power.
First, “the exercise of the spending power must be in pursuit of ‘the general welfare.'” This factor is almost always satisfied.
Second, Congress must place conditions on the funds “unambiguously.” States need to know what they are getting into when they accept federal money. CMS has not released any specific guidance, so I do not know which statutory authority they are working with. But under Pennhurst, and related doctrines, there must be a clear statement of the relevant conditions. President Trump’s attempts to defund sanctuary jurisdictions failed under this prong of the Dole test. The relevant statutes did not clearly impose conditions barring sanctuary policies. Here, it is not clear if the states had fair notice that CMS funding could be withdrawn if they do not impose a vaccine mandate.
Third, the conditions must “relate” to “the federal interest” for which the spending program was established. Dole did not define how closely “related” the condition must be to Congress’s “purpose.” Justice O’Connor’s dissent provided a more narrow test for “relatedness,” or “germaneness.” Here, I suppose the federal vaccine mandate is designed to prevent the spread of COVID across state lines.
Fourth, “[o]ther constitutional provisions may provide an independent bar to conditional grant of federal funds.” For example, the Dole majority held held that the Twenty-First Amendment, which allows states to regulate alcohol, was not such a bar. In dissent, Justice
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