On November 4, 2021, President Joe Biden ordered that all federal employees must be vaccinated against COVID-19. This triggered a large amount of resistance from federal employees, and according to Charles Scarborough, department of justice lawyer, U.S. District Judge Jeffrey Brown overstepped his authority when he blocked the presidents mandate in January.
Brown, who was appointed to the District Court for the Southern District of Texas, issued a nationwide injunction against the requirement. Now this issue is being brought before the federal appeals court. The attorney for the administration, Scarborough, is arguing that the constitution gives the president the same authority as a CEO of a private corporation because he is the head of the federal workforce. “This is the president exercising his authority as an employer,” Scarborough said. He is also arguing that the case does not belong in federal court stating that federal employees have administrative civil service remedies that must be exhausted before going to court.
Arguing for the other side is lawyer Trent McCotter who is saying that the administration is exceeding its statutory and constitutional power. “McCotter referenced the recent Supreme Court opinion that the government cannot force private employers to require employee vaccinations. He said the federal employee mandate was the same kind of “coercive choice” struck down in that case. “It’s a sort of freestanding, ongoing constitutional injury,” McCotter said. It was the second time in a month that the 5th Circuit dealt with the issue. A different panel refused last month to block Brown’s ruling pending appeal. That panel’s vote was 2-1, with no reasons given by the majority but a lengthy dissent by Judge Stephen Higginson, who said a single district judge “lacking public health expertise and made unaccountable through life tenure,” should not be able to block the president from ordering the same type of COVID-19 safety measures many private sector CEO’s have ordered (McGill 22).
The panel members for Tuesday’s hearing were Judge Carl Stewart, Rhesa Barksdale, and Judge James Dennis. During this time McCotter defended the ruling saying, “Unless he makes this a broad, clear injunction, then individuals entitled to relief are going to fall through the cracks.” The federal employee vaccine mandate is one of the many vaccine related mandates being tested in federal courts right now, one of which was Biden’s order that private employers force their workers to get vaccinated. This was struck down by the Supreme Court.
The requirement for federal contractors and subcontractors to be vaccinated is currently on hold. A federal judge in Georgia blocked the mandate nationwide and the Atlanta-based circuit appeals court will hear arguments on this case April 8, 2022.
By: Beth Gray