An Appeals Court Has Rejected the Biden Administration's Request to Resume the COVID-19 Vaccine Mandate for Feds

A federal appeals court has denied the Biden administration’s request to undo the pause on its COVID-19 vaccine mandate for federal employees, leaving in place a ban on agencies enforcing the requirement. 

The U.S. Court of Appeals for the Fifth Circuit opted not to weigh in on the Justice Department’s petition for immediate relief, meaning the mandate will likely remain enjoined for at least several months. The only path for quicker resolution would be for the administration to appeal further to the Supreme Court, an option it has not yet said it will explore. A Justice spokeswoman declined to comment. 

The Biden administration sought a stay from the Fifth Circuit after a lower court in Texas issued the injunction in a surprise ruling. Opponents of the mandate for federal workers have pursued more than a dozen cases seeking to strike down Biden’s order, but have yet to find success in any other court. About 98% of federal employees were in compliance with Biden’s executive order at the time of the injunction, with 93% vaccinated. Federal agencies are mostly not currently punishing non-compliant workers, or adjudicating requests for religious or medical exemptions. 

The appeals court asked for briefs from Feds for Medical Freedom, the group that brought the lawsuit with a union that represents some Homeland Security Department employees, and the Biden administration next month and will proceed with the case from there. In the meantime, the district court in Texas must still rule on the underlying case after it issued the preliminary injunction. 

In a dissenting opinion, Fifth Circuit Judge Stephen Higginson, a President Obama appointee, said the government was likely to ultimately prevail in the case. Higginson argued the federal circuit is not likely the proper place to address the concerns, the president has the constitutional authority to serve as the “CEO of the federal workforce” and the plaintiffs failed to show they will suffer irreparable harm without an injunction. 

“Federal employees that disagree with the content of Executive Order 14043 retain the right to claim an exemption, to leave the government’s employment, to collectively bargain, and to challenge the order through the [Civil Service Reform Act],” Higginson wrote. “And, of course, any American that disagrees with the content of the order has the right to vote the president out of office.”

On Wednesday, 45 Republican lawmakers, including more than a dozen senators, filed a brief with the court requesting it not stay the injunction. No federal statute allows the president to “unilaterally compel a broad swath of American workers to undergo a medical procedure,” they wrote, arguing he can only regulate “workplace conduct” for agency employees. Allowing the mandate to go through, they said, would create a dangerous precedent of allowing the president to declare “inherent powers.” While the administration has allowed and encouraged employees who qualify for them to seek religious exemptions to the mandate, the lawmakers called the carve outs “theater” and said the requirement violated employees’ First Amendment rights. 

“The American people have had enough of Biden’s unconstitutional mandates that trample on our rights,” said Sen. Ted Cruz, R-Texas. “Today, we’re sending a clear message to everyone suffering under Biden – from our military service members, to federal employees, to nurses and hospital staff: the days of these tyrannical mandates are numbered.”