Biden Killed the Vaccine Mandate for Feds. He’s Still Threatening to Take the Case to the Supreme Court.

While President Biden has revoked his mandate that all federal employees receive a COVID-19 vaccine, his administration has told a district judge it may still appeal to the Supreme Court a decision that blocked the requirement. 

Biden’s withdrawal of the mandate followed an en banc decision by the U.S. Court of Appeals for the Fifth Circuit, which ruled the president overstepped his authorities in mandating "private, irreversible medical decisions." While the pandemic-era health emergency has ended and nearly all federal employees are no longer subject to any COVID-19 vaccine requirement, the administration hinted it could still seek to prevent a wider, precedent-setting ruling by appealing to the highest court or by having the case dismissed as no longer relevant. The plaintiffs—Feds for Medical Freedom and a union representing some Homeland Security Department employees—have asked the U.S. Court for the Southern District of Texas, where the case originated and now awaits final action, to immediately and permanently kill the mandate. 

The government has until June 21 to seek an appeal before the Supreme Court, the Justice Department attorneys said, and the district court should not issue a ruling until the upper court either hears the case or that deadline has passed. With Biden’s executive order rescinded, they added, there is currently “no threat of harm” to the plaintiffs.

If the district court does lift the stay, the Biden administration pushed for the judge on the case—the same one who originally ruled against the mandate—to simply dismiss it as moot rather than issue a full ruling on the merits. 

Feds for Medical Freedom accused the Biden administration of intentionally dragging its feet, alleging it has no intention of appealing to the Supreme Court and simply wants to delay proceedings. The Justice attorneys did not seek such an appeal before the Fifth Circuit ruling became final, the plaintiffs noted, and the district court should therefore “proceed accordingly.” The group is seeking a summary judgment from the court without the need for additional proceedings. 

Additionally, the group argued, the government failed to materially address the actual merits of its argument seeking a permanent injunction. There is "ample evidence" the government could someday reimpose vaccine mandates, the group said, as there has been no legislative intervention. An affirmative ruling issuing a permanent injunction would help resolve any future uncertainty regarding the validity of such an executive branch mandate. 

“Defendants refuse to say they will not reimpose the mandates, and the fact that they oppose summary judgment here is proof in itself that they have at least some desire to be able to reimpose vaccine mandates down the road,” the Feds for Medical Freedom attorneys said. 

The government notified the court that if it declined to delay proceedings in the case, it would on June 22 file a motion to dismiss it as moot. Even if the court does not find the case has become moot, the Biden administration said it would be “premature” to issue a summary judgment. It noted the Fifth Circuit said in its decision that “both sides will have to grapple with” the president ending the public health emergency in May once the case makes its way back to the lower court. 

Feds for Medical Freedom is pursuing multiple additional cases seeking monetary damages for the alleged suffering endured by its members who were briefly subject to the mandates. By the time Biden’s mandate was enjoined in early 2022, at least 98% of the federal workforce was in compliance with the mandate by either proving they received the vaccine or requesting a medical or religious exemption.