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Biden administration asks 5th Circuit to reinstate vaccine mandate for federal employees

Stressing the need to ensure the health, safety and efficiency of the civil service, President Joe Biden issued an executive order last September requiring all federal agencies to implement COVID-19 vaccine requirements for their staff.

More than 90% of the government’s roughly 2.1 million civilian workers have complied. But some members of a nonprofit called Feds for Medical Freedom have successfully resisted in court.

They convinced U.S. District Judge Jeffrey Brown, a Donald Trump appointee, to block the mandate in January with a nationwide preliminary injunction.

Brown found Biden had exceeded his power to regulate the conduct of civilian federal employees, noting the government had provided no examples of a president imposing medical procedures on the federal workforce.

Justice Department attorney Charles Scarborough pressed a three-judge panel of the Fifth Circuit to lift the injunction Tuesday.

“The vaccine mandate is a response to an unprecedented situation in this country,” Scarborough said. “So we can’t provide a situation where a president has acted in this way. Nevertheless, that doesn’t mean it’s not a lawful exercise of authority.”

Scarborough argued Biden, as CEO of the executive branch, should be able to implement a COVID vaccine requirement as numerous CEOs of private companies have done for their employees.

When Biden issued the mandate, hospitals across the country were overwhelmed with seriously ill patients stricken with the delta variant and the number of Americans testing positive was growing by the thousands every day.

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U.S. Circuit Judge Rhesa Barksdale, a George H.W. Bush appointee, pointed out the coronavirus situation today is much less grim, as many Americans now have immunity from vaccines or natural antibodies after recovering from an infection.

In late February, the Centers for Disease Control and Prevention announced it was no longer advising masks be worn indoors in areas with low to moderate COVID transmission rates. Governors in 27 states have allowed COVID-19 emergency orders to lapse.

“What judicial notice do we take of the lessening COVID illnesses, mask mandates being dropped, et cetera, et cetera. Do we give any consideration of that?” Barksdale asked.

“I don’t think we do,” Scarborough replied. He said government agencies are moving away from a “maximum telework posture” and bringing their staff back to the office. “They’re going to be coming back into the workplace and that’s really important they come into those workplaces vaccinated.”

Scarborough stated Biden had made the reasonable determination that vaccination remains the most effective tool against COVID, more so than social distancing, masking and testing, which would be prohibitively expensive. “The calculation was made that regular testing for just 2% of the [federal] workforce would cost $11 to $22 million each month,” he said.

Besides that, Scarborough added, the objectors lack standing because the Civil Service Reform Act of 1978 dictates they must challenge any discipline they receive for eschewing the vaccine through an administrative process, not a federal lawsuit.

But Trent McCotter, counsel for Feds for Medical Freedom, countered that the CSRA and Supreme Court precedent do not foreclose such pre-enforcement facial challenges to employment policies.

McCotter cited the Supreme Court’s Jan. 13 decision striking down a mandate from the Occupational Safety and Health Administration directing companies with more than 100 employees to impose COVID vaccine requirements on their workers, and to administer weekly tests to those who refused inoculation.

“The Supreme Court said in its recent OSHA vaccine case the two most important factors for claims of executive power are historical precedent and the breadth of the government’s requested power,” said McCotter, of the Washington firm Boyden Gray & Associates.

As for historical precedent, McCotter cited the government’s admission no president has ever ordered any kind of medical procedure for federal civilian employees.

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One of the government’s main arguments is Biden’s mandate falls within his broad authority to regulate the conduct of federal employees, laid out in Title 5 Section 7301 of the U.S. Code. It states: “The President may prescribe regulations for the conduct of employees in the executive branch.”

But the challengers claim the shot requirement goes beyond regulating employees’ conduct to governing their vaccination status.

McCotter also questioned where the limits would be for the president to dictate the terms of employment.

“The government cites no real limitation under 7301 except the individuals be executive branch employees,” McCotter argued. “That would mean for executive branch employees, the president can order almost anything he wants. The government’s primary argument in response seems to be that ‘don’t worry the president won’t do anything crazy.’ That’s not a legitimate legal argument for interpreting the statute.”

U.S. Circuit Judge Carl Stewart, a Bill Clinton appointee, said he disagrees with the lower court's decision to block the mandate with a nationwide injunction. Stewart rejected McCotter’s claims it is appropriate because Feds for Medical Freedom, the lead plaintiff, consists of more than 6,000 members and growing who work for nearly every federal agency.

Besides Brown, a dozen other federal judges have heard challenges to the mandate and he’s the only one who opted to block it.

On rebuttal, Scarborough, the Justice Department attorney, said the case comes down to who decides if a vaccine requirement is needed for federal workers: a judge with no public health expertise, who has a lifetime appointment by the U.S. Senate to the federal bench and is unaccountable to voters, or the president, who is informed by public health experts.

“The president is the singularly most accountable elected official in the country and he’s not making a decision as to other employers in this case. He’s making a decision as to his own workforce,” Scarborough concluded.

U.S. Circuit Judge James Dennis, a Clinton appointee, rounded out the panel. The judges did not say when they would issue a ruling.

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Joint Base San Antonio

Brigadier General Caroline M. Miller receives the first of two COVID-19 vaccine shots on Jan. 29, 2021.