Kemp, Carr file fourth lawsuit against Biden administration over COVID-related mandates as new cases spike

ATLANTA - Governor Brian Kemp and Attorney General Chris Carr said they have filed a lawsuit to challenge the Biden administration's Head Start vaccine and masking mandate. This as the Georgia Department of Public Health releases data showing the second day of a spike in new cases that some experts believe could be the start of the fifth wave of COVID-19 in the state.

HOSPITALIZATIONS, CONFIRMED COVID-19 CASES SPIKE IN GEORGIA AS OMICRON VARIANT BECOMES DOMINANT

At the end of last month, the U.S. Department of Health and Human Services mandated all Head Start staff and certain contractors and volunteers be fully vaccinated by the end of January 2022. It further mandated masks must be worn by children two years of age and older.

"This is just the latest and most egregious in a growing list of overreaches by this President," said Governor Kemp. "It is all the more troubling and inexcusable, given this mandate directly impacts and impairs our children. As with our prior lawsuits against the administration's unwarranted and inappropriate decisions, we will not rest in this fight to protect the rights and choices of Georgia's families, especially when it comes to our youngest citizens. We will not allow these policies to invade our classrooms, teaching the wrong lessons about the role of government to growing minds."

Kemp has long been an opponent to masks having issued an emergency declaration in May that public schools no longer have his permission to require masks for coronavirus protection, though his executive order fell short of banning such mandates outright. Three months later, Kemp signed an executive order liberating businesses from local COVID-19 ordinances including mask mandates. At both times, Kemp pointed to data that shows most of those being impacted by the virus now are unvaccinated and encouraged all Georgians to get vaccinated. While Kemp has stated the COVID-19 vaccine works and reiterated his belief that it's the best way to fight the virus, he's resisted the idea of federal or state mandates related to health. 

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A year earlier, Kemp and Attorney General Carr filed suit against Atlanta Mayor Keisha Lance Bottoms over her mask mandate stating he did so to "immediately stop the shuttering of local businesses and protect local workers from economic instability." That suit was withdrawn a month later but was replaced with an executive order that restricted local governments from issuing mask mandates on private property unless certain requirements are met. 

In September, Kemp vowed to fight a vaccine mandate set forth by President Joe Biden that would impact as many as 100 million Americans calling it a "blatantly unlawful overreach." Two months later, Kemp and Carr joined about two dozen other Republican-controlled states filing a lawsuit to block the mandate.

Kemp and Carr again plan to battle the Biden administration, this time on the Head Start mandates.

"After taking unprecedented action to impose three reckless mandates on our nation's workforce, the Biden administration has doubled down on its efforts and is now targeting our state’s youngest learners," said Attorney General Carr. "The federal government is attempting to force Georgia families to choose between two equally problematic outcomes – either give up their right to make their own healthcare decisions or risk their child’s education. This unlawful power grab is merely the latest example of a disturbing pattern emerging in this administration, and we will continue to fight back to protect our state and our citizens."

"This administration is trying to force kids as young as two to wear a mask all day. It is outrageous - and we’re taking them to court to put a stop to it," Kemp wrote in a tweet on Tuesday evening.

The lawsuit asserts the vaccine and masking mandate:

• Exceeds the statutory authority of the U.S. Department of Health and Human Services;

• Is contrary to law;

• Illegally bypassed notice and comment;

• Is arbitrary and capricious;

• Constitutes an exercise of legislative power in violation of the Nondelegation Doctrine; and

• Violates the Congressional Review Act, the Tenth Amendment, the Anti-Commandeering doctrine, the Spending Clause, and the Treasury and General Government Appropriations Act of 1999.

Georgia will join 23 other states in asking the court to prevent the federal government from enforcing those rules. Of those states, the Centers for Disease Control and Prevention reports only three are in the top half percentile of populations that have been fully vaccinated against COVID-19, West Virginia at No. 6, Florida at No. 21, and Nebraska at No. 25, and 17 make up the absolute lowest percentile including Alaska, Ohio, Kentucky, Montana, Oklahoma, South Carolina, Missouri, North Dakota, Indiana, Tennessee, Arkansas, Louisiana, Mississippi, Alabama, and Wyoming with Georgia at No. 46 and Idaho, which is at the bottom of the list, not joining the suit. Iowa, Utah, Arizona, Kansas, and South Dakota are also part of the suit.

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The Georgia Department of Public Health on Tuesday afternoon reported more than 5,700 new cases, a high not seen since the first week of October and some experts believe this is the start of a fifth wave of COVID-19 with the omicron variant now being dominant.

"Test positivity is already nearly as bad as it was at the peak of delta when we're only a few days into this surge," wrote Mercer University microbiology professor Dr. Amber Schmidtke, Ph.D. on her Twitter account on Tuesday evening.

Kemp, responded to the growing cases in Georgia and told reporters "we’re still holding our own" explaining if the state can hold out until the first of the year, it will be in better shape.

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The lawsuit is being filed in the U.S. District Court for the Western District of Louisiana.

This is now the fourth lawsuit the governor and attorney general have brought against the Biden administration on behalf of the state.

Both Kemp and Carr face re-election in 2022. Carr is currently running unopposed in the Republican primary but is expected to face either former Fulton County Senior Assistant District Attorney Charlie Bailey, who Carr beat by more than 100,000 votes in 2018 or State Senator Jen Jordan, in the general election. Kemp faces a tough primary with former U.S. Senator David Perdue, former State Rep. Vernon Jones, and three others challenging him for the GOP nomination. The winner is expected to face Democrat Stacey Abrams in the general election. Kemp beat Abrams in 2018 by 54,723 votes and missing a runoff between the two by just over two-tenths of a percentage point.

Head Start is administered by Georgia's Department of Early Care and Learning in the state.

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