President Joe Biden’s coronavirus vaccine mandate is illegal under federal law, the Fifth Circuit federal appeals court held Thursday in a major defeat for the Biden administration.
Biden issued Executive Order 14043 on September 9, 2021, requiring 4.2 million federal employees to get a Covid vaccine as a condition for continued employment by the federal government. He claimed he had this authority under the Civil Service Reform Act (CSRA) as part of determining “workplace conditions” for employees, and that he also had inherent power under Article II of the Constitution to require federal employees to get the jab.
A nonprofit group named Feds for Medical Freedom sued on behalf of its 6,000 members who are federal employees, joined by other groups and individual plaintiffs, all arguing that the president has no such authority, and seeking a preliminary injunction to block the mandate while the case plays out in court. They are represented by Boyden Gray & Associates, a boutique law firm led by famed lawyer Boyden Gray, who served as White House counsel under President George H.W. Bush and is also a former U.S. ambassador. Several lawyers from the Trump administration who now work at his firm, Jonathan Berry, Michael Buschbacher, and Trent McCotter led the challenge.
Judge Jeffrey Brown of the U.S. District Court for the Southern District of Texas agreed with the challengers, holding the president lacked this authority. Noting that the 6,000 employees and other plaintiffs were scattered nationwide amongst virtually every federal agency, he issued a preliminary injunction blocking Biden’s vaccine mandate nationwide.
The Justice Department appeals, and a 3-judge panel mostly made of the few liberal judges on the Fifth Circuit – which overall is the most conservative federal appeals court in the country – held that federal courts lack jurisdiction to decide CSRA disputes like this one, dissolving the injunction without commenting on the legal merits.
But then the full Fifth Circuit voted to rehear the case en banc, meaning that all the judges on the court will hear the case together – which is 17 judges, but was 16 judges at the time due to a vacancy – setting aside the 3-judge panel’s decision, and thereby reinstating Judge Brown’s injunction while the appeal was being decided.
The full en banc Fifth Circuit handed down its decision Thursday, with Judge Andrew Oldham writing the majority opinion for what is essentially a 10-6 decision, although some judges split on other issues highlighted in separate opinions.
Oldham thoroughly explained why federal courts do indeed have jurisdiction over this challenge, winding carefully through very technical arguments as to why this is not left in the hands of the board that hears CSRA complaints.
Turning to the merits of the legal challenge, Oldham wrote for the 10-judge majority, “we need not repeat the district court’s reasoning, with which we substantially agree.”
That district court opinion by Brown had reasoned that CSRA “authorizes the President to regulate the workplace conduct of executive-branch employees, but not their conduct in general.”
Biden Orders Vax Mandates: "This is Not About Freedom or Personal Choice" pic.twitter.com/HoDwTqLbyG
— Breitbart News (@BreitbartNews) September 10, 2021
“Applying that same logic to the President’s authority under [the CSRA], he cannot require civilian federal employees to submit to the vaccine as a condition of employment,” Brown added.
Brown also rejected the argument that Article II of the Constitution gives the president inherent power to require vaccines, reasoning that “the government points to no example of a previous chief executive invoking the power to impose medical procedures on civilian federal employees.”
Judge James Ho joined Judge Oldham’s opinion in full, adding a concurring opinion joined by Judge Edith Jones, making the point that the CSRA might be unconstitutional, and pointing out how for decades many federal employees disregard the directions of the elected president under which they serve, because under the CSRA it is very difficult to fire a federal employee.
Quoting several scholars, Ho writes:
What’s more, federal employees know it—and they take full-throated advantage of it. As anyone who has ever held a senior position in the Executive Branch can attest, federal employees often regard themselves, not as subordinates duty-bound to carry out the President’s vision whether they personally agree with it or not, but as a free-standing interest group entitled to make demands on their superiors. As a result, Presidents can have a hard time implementing their agenda if civil servants collectively drag their feet or lack the competence to carry out the President’s orders.
Ho continued, quoting one prominent professor:
Indeed, one scholar has pointedly noted that the single biggest obstacle for any President is not the separation of powers designed by our Founders, but the millions of federal employees who are supposed to work for him. These employees can drag their feet, leak to the press, threaten to resign and employ other tactics to undermine [a President’s] initiatives if they object to them. They’re also hard to fire, thanks to Civil Service protections.
However, Ho noted that Biden was not challenging the constitutionality of CSRA, and therefore this case is not an appropriate vehicle for determining if presidents always have authority to fire subordinates who refuse to follow the president’s directions.
The case now goes back to Brown’s courtroom for additional proceedings, including determining whether the injunction would continue to block the mandate nationwide, or be limited to the 6,000 members represented in the case.
The Justice Department also has the option of petitioning the Supreme Court to review the Fifth Circuit’s decision.
The case is Feds for Medical Freedom v. Biden, No. 22-40043 in the U.S. Court of Appeals for the Fifth Circuit.
Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.
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