Does the President of the United States have the authority to order 3.5 million non-military federal employees to receive a COVID-19 vaccine or lose their jobs, subject only to religious or medical exemptions? A Texas federal district court judge in January said “no,” and issued a nationwide injunction blocking President Biden’s Executive Order to that effect. When the district court judge refused the government’s request to put his injunction on hold, the feds immediately took the issue to the next highest court.
On February 9, the 5th U.S. Circuit Court of Appeals in New Orleans refused, for now, to “stay” (i.e., freeze) that lower court order but has indicated that it will hear oral arguments on that request in the ordinary course of the 5th Circuit’s business. Although the court did not issue a written majority opinion, there was a dissent filed that takes issue with the court’s refusal to immediately order a stay.
The issue of COVID-19 vaccine mandates from the federal government has been the subject of litigation all over the country. In mid-January, the U.S. Supreme Court put a mandate on hold from the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) that forced employers with 100 or more employees to require either vaccination or mask-wearing and weekly testing. The court ruled that OSHA did not have authority from Congress to issue such an order.
At the same time, however, the high court allowed a vaccine mandate affecting the nation’s healthcare workers to go into effect.
Another mandate affecting federal contractors was blocked by a federal district court in Georgia in December. That case is on appeal.
The federal employee mandate, according to U.S. District Judge Jeffrey Vincent Brown in his January 21 opinion and order, has the same problems as the OSHA mandate.
“The court notes at the outset that this case is not about whether folks should get vaccinated against COVID-19—the court believes they should,” Judge Brown wrote. “It is not even about the federal government’s power, exercised properly, to mandate vaccination of its employees. It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment. That, under the current state of the law as just recently expressed by the Supreme Court, is a bridge too far.”
Judge Stephen Higginson, who dissented from the 5th Circuit’s recent order, said the President is the same as any CEO of a private corporation with regard to regulating the requirements for employees under his control. He would have granted the stay.
“[T]he President, as head of the federal executive workforce, has authority to establish the same immunization requirement that many private employers have reasonably imposed to ensure workplace safety and prevent workplace disruptions caused by COVID-19,” Higginson wrote.
So, what’s next for the federal employee mandate? The federal government’s lawyers could ask the Supreme Court to step in and order the stay that the 5th Circuit thus far has refused to issue, or they could wait until oral arguments are scheduled at the 5th Circuit to renew their request. We’ll keep you apprised of developments in the lawsuit.
The case is Feds for Medical Freedom v. Biden.
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