The fate of President Biden's vaccine mandate once again hangs in the balance.
A federal appeals court asked the Biden administration where the president’s authority to issue edicts over the civil service ends, leaving open the possibility it will rule the White House overstepped when it mandated most federal employees receive the COVID-19 vaccine mandate.
Various judges of the full U.S. Court of Appeals for the Fifth Circuit in New Orleans asked a Justice Department attorney whether the president could also require federal employees to reach a certain weight, refrain from smoking at home, limit themselves to one child or take birth control under the same rationale he used to mandate the vaccines. The questioning took place in the oral arguments of the en banc hearing of the Fifth Circuit after the full court agreed to rehear the case and restore a nationwide injunction on the requirement. A panel of the court previously ruled in favor of the government, saying the plaintiffs did not have standing to bring their lawsuit.
“What I’m suggesting is there is no limit to the principle that you are espousing, which is we are requiring federal employees to take the vaccine mostly for their own good,” one judge said at the hearing.
Charles Scarborough, the Justice attorney making the government’s case on Tuesday, pushed back on that criticism, saying the president, as CEO of the executive branch, must demonstrate any orders he issues for the federal workforce improve the efficiency of the civil service and have a nexus to the workplace. He conceded the vaccine mandate invited such “extreme hypotheticals” as those floated on the bench, but said political realities and competition with the private sector for workers create further constraints.
A central part of the government’s argument again focused on the jurisdictional issue. In April, a 2-1 majority of a Fifth Circuit panel said the plaintiffs did not have standing in the federal circuit and must instead pursue their appeals through the Merit Systems Protection Board or Office of Special Counsel as laid out in the Civil Service Reform Act. Scarborough added the president has historically placed many conditions on employment in the federal workforce, such as through detailed background checks, requirements to avoid conflicts of interest and prohibitions on drug use.
Judge Rhesa Barksdale, who voted against the government in the earlier panel ruling, said the vaccine’s failure to prevent individuals from contracting COVID-19 meant it was more of a therapeutic and undermined the Biden’s administration’s argument. Scarborough said the distinction was immaterial, as the vaccine was the most effective way to protect federal employees against severe illness and death and preventing illness to federal employees clearly has some nexus to productivity of the workplace. He conceded when Biden issued the mandate last year, the vaccines were thought to be more effective against the transmission of the COVID-19 strains prevalent at that time and therefore the requirement would protect employees from getting infected.
“The fact is that the science has changed,” Scarborough said. “There are new variants and that particular rationale is somewhat eroded, but there are still significant rationales at play here in terms of preventing serious illness for federal employees, which has a clear nexus to the federal workplace in terms of productivity and efficiency.”
Another judge questioned whether the system Scarborough suggested—in which an employee must wait until they are first suspended or fired, and then take their case to MSPB—actually allowed for “meaningful judicial review.” Federal employees would face a chilling effect in the meantime, the judge said, and be at least temporarily subject to a policy that “itself is antithetical to personal freedom and choice.” Scarborough contended that was the scheme Congress created through the Civil Service Reform Act.
R. Trent McCotter, the attorney for the plaintiffs—the group Feds for Medical Freedom and a union representing some Homeland Security Department employees—said the coercion created by Biden’s mandate through government edict was unconstitutional. He added that individuals have always maintained the ability to challenge governmentwide policy prior to enforcement. McCotter noted the Fifth Circuit accepted similar logic when it stayed a Biden administration rule requiring the vaccine for large, private sector companies. That rule was later struck down by the Supreme Court.
The en banc ruling, expected in the next few weeks, could be the last step after a lengthy court battle that has played out through many fits and starts over the last year. Feds for Medical Freedom has previously said it will take its case to the Supreme Court if the Fifth Circuit rules against it, though the high court may be less inclined to weigh in on the case after it already ruled on two vaccine mandate cases in January. If the mandate is ultimately permitted to stand, individual employees could still wind up in the federal circuit if they take their cases to MSPB and appeal further after an initial decision. The mandate has not been enforced since a U.S. district judge in Texas first enjoined it in January.
Marcus Thornton, president of Feds for Medical Freedom, said after the hearing that win or lose, his group had already scored a symbolic victory.
“Regardless of the court’s ruling, Feds for Medical Freedom has won a great victory by taking a stand, speaking truth to power, and making sure the American people know how outrageously their fellow Americans are being treated," Thornton said. "Federal workers who stood up for their rights have been subjected to personal and professional ridicule, disciplinary actions, threats of termination, and a generally hostile work environment," he added, calling that treatment "profoundly wrong."
The Biden administration last month ended its differential treatment of vaccinated and unvaccinated employees at most locations, meaning those who have not received their shots no longer have to take tests to enter their workplace.
While 98% of the federal workforce has gone along with Biden’s order, agencies are still looking to move forward with discipline for the tens of thousands of workers who have failed to comply. They are also hoping to resume adjudication of the roughly 5% of the workforce that has requested an exemption. A select few agencies have continued enforcement—primarily those with workers in a health care setting—though initial evidence showed it led to discipline for just a few dozen employees.
This article was published first on GovExec, a FederalSoup partner site.