Republicans Try to Undo Health Care Worker Vaccine Mandate

Republicans in the House and Senate are trying to use a special procedure to nullify the Biden administration’s vaccine mandate for certain health care workers. Many of the lawmakers are working to do the same for the private businesses vaccine rule. 

The 1996 Congressional Review Act gives Congress the ability to overturn agency rules during a certain period of time following their issuance. Both chambers must pass a resolution for the president to sign. While often used following a presidential transition, this tactic can be used in other times as well. The targeted rule in this situation is the Centers for Medicare and Medicaid Services’ vaccine requirement for health care providers in Medicare and/or Medicaid programs. The rule is currently on pause in certain states due to preliminary injunctions issued by two federal judges. 

“As a physician, I’m confident the vaccine has saved lives; however, whether to receive it is a personal choice between individuals and their doctor – not mandated via executive actions,” said Sen. Roger Marshall, R-Kan., who introduced the resolution on December 9, in a statement. “We are continuing to do everything in our power to fight for those who ran to the sound of the battle – for these are the true heroes of the pandemic and deserve our best fight and utmost respect.”

Since the resolution has 32 original co-sponsors, it “will receive privilege in the Senate, which means the Senate must bring the legislation to the floor for a vote in the coming weeks,” said a press release from Marshall’s office on Tuesday. 

Rep. Jeff Duncan, R-S.C., is leading the charge in the House and also introduced a Congressional Review Act resolution on December 9, which has 161 co-sponsors. 

“We are concerned that if the Biden administration moves forward with their vaccine mandate for medical personnel, the resulting staff shortages could actually cost lives instead of saving them,” said Duncan, in a statement. “I initially brought up this concern in September in a letter to President Biden.” 

Last week, the Senate passed a Congressional Review Act resolution in an attempt to undo the Occupational Safety and Health Administration’s vaccine or test rule for private businesses with 100 or more employees. White House Press Secretary Jen Psaki said Biden will veto the measure if it comes to his desk and the White House issued a formal statement of administration policy against it. 

Sens. Joe Manchin, D-W.Va., and Jon Tester, D-Mont., were the only two Democrats to vote in favor of the resolution. 

Government Executive reached out to their offices to see if they will sign on to the new Congressional Review Act resolution, but they did not respond by the time of this article’s publication. 

“The Senate passage of the [Congressional Review Act] resolution on the OSHA vaccine rule, along with the strong Republican support for [Congressional Review Act] resolutions on the CMS vaccine rule confirms that the Republican party has settled on a strategy of using the [Congressional Review Act] to undermine the country’s public health response to COVID,” Matt Kent, regulatory policy associate at the consumer advocacy nonprofit Public Citizen, told Government Executive on Wednesday. The act “is suited for a cynical move like this since it was conceived as an anti-regulatory, anti-public health and safety law.” 

Kent also flagged that on Tuesday the Government Accountability Office released an opinion, following a request from Sen. Rand Paul, R-Ky., saying the Centers for Disease Control and Prevention’s transportation mask requirement is eligible for repeal under the Congressional Review Act. This was “despite CDC arguing that it’s an order (not a rule),” so this “could mean Paul will introduce a resolution on this one,” Kent said. 

The timing would work out if Republicans decided to do so. “Since CDC never submitted the order to Congress – the 60-day clock starts from the date of GAO’s decision,” Kent said. “This GAO review part is weird because it doesn’t really have an explicit basis in the law’s text but has developed over time as a gap filler.”

A spokesperson confirmed on background that Paul would be introducing a resolution to undo the mask requirement for travel.

Update: This article has been updated to reflect the Fifth Circuit Court of Appeals' ruling on Wednesday.