Louisiana v. Becerra

• Decision Date: 01 January 2022
• Docket Number: CASE NO. 3:21-CV-04370
• Citation: 577 F.Supp.3d 483
• Parties: State of LOUISIANA et al. v. Xavier BECERRA et al.
• Court: U.S. District Court — Western District of Louisiana

577 F.Supp.3d 483

State of LOUISIANA et al.

v.Xavier BECERRA et al.

CASE NO. 3:21-CV-04370

United States District Court, W.D. Louisiana, Monroe Division.

Signed January 1, 2022

Elizabeth Baker Murrill, LA Atty Generals Office, Josiah Kollmeyer, LA Dept. of Justice, Baton Rouge, LA, Joseph Scott St. John, LA Dept. of Justice, New Orleans, LA, for State of Louisiana.

Elizabeth Baker Murrill, LA Atty Generals Office, Baton Rouge, LA, for State of Alabama, State of Alaska, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Indiana, State of Iowa, State of Kansas, Commonwealth of Kentucky, State of Mississippi, State of Missouri, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Tennessee, State of Utah, State of West Virginia, State of Wyoming.

Christopher D. Edelman, Michael Patrick Clendenen, U.S. Dept. of Justice, Washington, DC, for Xavier Becerra, US Dept of Health & Human Services, Administration for Children & Families, Jooyeun Chang, Bernadine Futrell.

MEMORANDUM ORDER

TERRY A. DOUGHTY, UNITED STATES DISTRICT JUDGE

This case involves the Head Start Vaccine and Mask Mandate¹ ("Head Start Mandate"). The Head Start Mandate requires all Head Start staff, volunteers working in classrooms or directly with children, and contractors whose activities involve contact with or providing direct services to children and families, to be fully vaccinated for COVID-19 by January 31, 2022. The Head Start Mandate also requires immediate masking by all individuals two years of age or older when indoors, when outdoors during activities that involve close contact with other people, and when there are two or more people in a vehicle owned, leased, or arranged by the Head Start Program.

In the immortal words of President Ronald Reagan, the nine most terrifying words in the English language are, "I'm from the government and I'm here to help." Presidential News Conference, August 12, 1986. In order to help rid the United States of the COVID-19 virus, the government has imposed four vaccine mandates. The mandates pose an issue for millions of Americans: be fully vaccinated or lose their jobs.

The Head Start Mandate was not passed by an act of Congress, but by an interim final rule of the following Executive branch federal agencies and divisions: Office of Head Start ("OHS"); Administration of Children and Families ("ACF"); and the Department of Health and Human Services ("DHHS"). The Plaintiff States² brought suit against the Agency Defendants³ seeking an injunction prohibiting enforcement of the Head Start Mandate.

Pending before the Court is Plaintiff States’ Motion for Preliminary Injunction ("PI") [Doc. No. 2], Motion for Temporary Restraining Order ("TRO") [Doc. No. 6] and Amended Motion for Temporary Restraining Order [Doc. No. 7]. The parties briefed both the PI and the TRO.

Although this case is about the Head Start Mandate, the real issue is separation of powers under the United States Constitution. Specifically, whether the Agency Defendants, government agencies under the Executive branch, have the authority to impose the Head Start Mandate.

When this country's founders declared independence on July 4, 1776, they sought a government much different from one involving the dictatorship of a king. Fifty-five (55) delegates attended the Constitutional Convention in Philadelphia from May 25 to September 17, 1787. The delegates came up with an ingenious system which involved three separate but equal branches of government: (1) the Executive branch (President of the United States); (2) the Legislative branch (Senate and House of Representatives); and (3) the Judicial branch (Supreme Court and lower courts). To avoid tyranny, the Constitution gave each branch unique powers which operated as a check on the others. The Legislative branch was given the power to make laws.⁴ The Executive branch had the President of the United States as Head and Commander in Chief of the United States Armed Forces. The President signs Acts of Congress into laws but was not given the authority to make laws.⁵

The U.S. Constitution was ratified on June 21, 1788. Since then, the government has created numerous federal agencies. There currently exists approximately 220 Executive branch agencies, which includes the U.S. Department of Health and Human Resources ("HHR"). The HHR includes, as a division, the ACF. The ACF includes the OHS. Therefore, all of the Agency Defendants are within the Executive branch of the U.S. Government.

These government agencies and divisions were created by Acts of Congress, which gave these agencies certain powers. Here, Congress enacted Title 42 U.S.C. § 9836a(a)(1)(C)-(E) and gave the Secretary of Head Start agencies and programs the power to modify, as necessary, program performance standards by regulation, which includes:

(C) administrative and financial management standards;

(D) standards relating to the condition and location of facilities for such agencies and programs used by Head Start agencies; and

(E) such other standards as the Secretary finds to be appropriate.

The powers that Congress afforded the Agency Defendants within the statute above do not include, or imply, the power to impose vaccine and/or mask mandates. Agency Defendants "claim to possess ‘superpowers’ " to impose a vaccine mandate on staff, volunteers, and contractors, and a mask mandate on children as young as two years of age. For the reasons further set forth herein, this Court finds the Plaintiff States are likely to succeed on the merits on their claims that Agency Defendants DO NOT have the power to impose the Head Start Mandate. Plaintiff States’ Motion for Preliminary Injunction [Doc. No. 2] is GRANTED. Plaintiff States’ Motion for Temporary Restraining Order [Doc. No. 6] and Amended Motion for Temporary Restraining Order [Doc. No. 7] are DISMISSED AS MOOT.

I. BACKGROUND

Title 42 U.S.C. § 9831 defines the purpose of the Head Start program as "to promote the school readiness of low-income children by enhancing their cognitive, social and economic development." The Head Start program provides federal funding for educational and related services to low-income families of preschool-age children.

When the Head Start program was created in 1965, President Lyndon B. Johnson stated, "We call our program Project Head Start. These children will receive preschool training to prepare them for regular school in September. They will get medical and dental attention that they badly need, and parents will receive counseling on improving the home environment." Lyndon B. Johnson Remarks on Project Head Start May 18, 1965. www.presidency.ucsb.edu.

On the Fiftieth anniversary of Project Head Start, President Barack Obama stated, "For millions of families, Head Start has been a lifeline. And for millions of kids, it's been the start of a better life." www.obamawhitehouse.archives.gov, May 18, 2015.

After initially rejecting vaccine mandates,⁶ President Joe Biden's "patience" began "wearing thin" with those "who haven't gotten vaccinated."⁷ On September 9, 2021, the Biden Administration announced a series of federal vaccine mandates, which included the Head Start Mandate.⁸

On November 30, 2021, eighty-two (82) days after President Biden's announcement, HHS published an interim final rule, which required (1) COVID-19 vaccinations

by Head Start staff, volunteers, and contractors, and (2) masking of all Head Start individuals two years of age or older. Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, 86 FR 68052-01 ("86 Fed. Reg."). Mask requirements were to take effect immediately, and staff, workers, and contractors were required to be fully vaccinated by January 31, 2022.⁹

Despite having eighty-two (82) days to complete the interim final rule, Agency Defendants did not complete the Administrative Procedure Act's ("APA") notice-and-comment requirements.¹⁰ Id. at 68058. Instead, Agency Defendants invoked the "good cause" exception. The reasons given by the Agency Defendants for waiving the notice-and-comment requirement were failure to achieve sufficiently high levels of vaccinations

, potential harm to children from unvaccinated staff, continuing strain on the health care system, known efficacy and safety of available vaccines, and danger to the health and safety of staff, children, and families. Agency Defendants also cited "impracticality" and "contrary to the public interest" in waiving notice of the notice-and comment procedures. For the same reasons, Agency Defendants also waived the delay required under the Congressional Review Act "CRA".¹¹

The Head Start Mandate based its statutory authority solely on Title 42 U.S.C. § 9836a(a)(1)(C)-(E). The specifics of the mask requirement included universal masking for all individuals two years of age or older when indoors in a setting where Head Start services are provided, when there are two or more individuals in a vehicle owned, leased, or arranged by the Head Start program, and for those not fully vaccinated, when outdoors in crowded settings or during activities that involve close contact with other people. 86 Fed. Reg. 68053.

The vaccination

requirement would require all staff who work with enrolled Head Start children, volunteers in classrooms, or volunteers working directly with children, and contractors whose activities involve contact with or providing direct services to children and families to be vaccinated by January 31, 2022. 86 Fed. Reg. 68052, 68060-61.

There are only two clear exemptions in the vaccine requirement. Those exemptions are for those whom medical necessity requires a delay in vaccination

and those who are legally entitled to an accommodation with regard to the COVID-19 vaccine under federal law. Individuals granted accommodations are required to undergo weekly COVID-19 testing. 86 Fed. Reg. 68060-62.

The Head Start Mandate requires...