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Judge blocks Biden vaccine mandate for federal workers

A Trump-appointed federal judge issued a nationwide injunction Friday blocking the requirement for federal employees to get inoculated against COVID-19.

Feds for Medical Freedom, a Nevada nonprofit comprised of thousands of employees of federal agencies, formed to oppose the Biden administration’s COVID-19 vaccine mandates, and dozens of its members sued President Joe Biden, all members of his Cabinet and other federal officials on Dec. 21 in Galveston federal court.

The lawsuit took aim at the White House’s directives for federal agencies to require COVID vaccines of all their employees and for federal contractors to do the same with their workforces or face losing their contracts with the government.

“I have determined that ensuring the health and safety of the federal workforce and the efficiency of the civil service requires immediate action to protect the federal workforce and individuals interacting with the federal workforce,” Biden said in a Sept. 9 statement unveiling the directive for federal employees.

 With the federal contractor mandate already blocked by a nationwide injunction, Feds for Medical Freedom’s attorney Trent McCotter of the Washington firm Boyden Gray & Associates acknowledged in a Jan. 13 preliminary injunction hearing he does believe Biden has the power to force members of the military to get the jab under Article II of the Constitution, but argued that authority doesn't extend to civilians.

“I don’t think there’s any inherent Article II power over civil employees being vaccinated," McCotter said. "And I don’t think there’s any statutory provision that has actually given the executive this power. … Maybe it’s a separate question whether Congress could do. I just don’t believe they have done so.”

Justice Department attorney James Gillingham disputed that claim. He said Article II gives a president authority to oversee the federal workforce, and said Congress recognized that authority with passage of Section 7301 of the U.S. Code, which states, “The president may prescribe regulations for the conduct of employees in the executive branch.”

“I think that the act of getting vaccinated is definitely something that would be conduct and falls within even the congressional recognition of this power," Gillignham said.

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He argued that “given we’re in a unique situation” of a pandemic in which COVID-19 has killed more than 800,000 Americans, hospitalized 3.5 million and hundreds of thousands are testing positive every day, the president taking steps to ensure the safety of the federal workforce is “something that is right in the middle of what [Biden] is charged to do.”

U.S. District Judge Jeffrey Brown asked Gillingham how far the president could extend that power.

“I think we’re not close to the edges of the power,” Gillingham replied. “There would be a limit. We’re just not near that limit.”

Brown, a Donald Trump appointee, also probed the attorneys on how soon a federal employee could face discipline for not complying.

While they agreed they did not know any government worker who had been suspended or fired yet, McCotter said plaintiff Keri Divilbiss, a Houston-area employee of the Agriculture Department, had received a notice of suspension that could be enforced as soon as Friday.

Apparently timing his order to prevent the agency from suspending Divilbiss, Brown issued a nationwide injunction early Friday against the mandate, citing the U.S. Supreme Court’s recent decision to stay another one from the Occupational Safety and Health Administration requiring large businesses to get their staff inoculated against COVID-19 or force them to undergo weekly tests for the virus.

“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,” 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.”

Noting the government has provided no examples of a previous president invoking Article II power to impose medical procedures on civilian federal employees, Brown found Biden had overstepped his authority.

“Congress appears in § 7301 to have limited the president’s authority in this field to workplace conduct. But if the court is wrong and the president indeed has authority over the conduct of civilian federal employees in general—in or out of the workplace—'what is the logical stopping point of that power?’” the judge wrote, citing the Sixth Circuit’s Jan. 5 order in a case challenging the federal contractor vaccine mandate.

“Is it a ‘de facto police power’? Brown added. “The government has offered no answer—no limiting principle to the reach of the power they insist the president enjoys. For its part, this court will say only this: however extensive that power is, the federal-worker mandate exceeds it.”

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The Justice Department urged Brown not to issue a nationwide injunction because most of the around 50 individual plaintiffs had applied for an exemption from the vaccine mandate. It said he could tailor the injunction to the dozen who have stated in affidavits they don’t plan on asking for exemptions.

But the judge determined tailoring would not be practical and would be unwieldy given the large number of federal employees who oppose the mandate.

“The lead plaintiff, Feds for Medical Freedom, has more than 6,000 members spread across every state and in nearly every federal agency, and is actively adding new members,” he wrote.

Despite the thousands of holdouts, most federal employees have hitched up their sleeves and received the shots.

The White House set a Nov. 22 deadline for federal employees to comply but noted in an update in early December it was not a hard deadline.

“For those employees not yet in compliance, agencies are undertaking a period of education and counseling, to be followed by additional enforcement steps," it said. "These efforts have already resulted in increased levels of vaccination and compliance. As of Dec. 8, 2021, the federal government has achieved 97.2% compliance with 92.5% of employees having received at least one COVID-19 vaccination dose.”

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