The Biden administration has promulgated four COVID-19 vaccination mandates. Two were issued via administration regulations and were recently reviewed by the Supreme Court. For the first—a rule issued by the Occupational Safety and Health Administration (OSHA) for businesses with 100 or more employees—the Court found that Congress had not granted the agency the authority to issue such a mandate and granted preliminary relief. The second—a rule issued by the Secretary of Health and Human Services requiring health care facilities receiving Medicare and Medicaid funding to ensure their staff undergo vaccination—was allowed to move forward.
Two others were issued via Executive Orders on September 9, 2021. The first, Executive Order No. 14042, compels businesses contracting with the federal government to require employees to be vaccinated or lose their contracts. Enforcement has already been enjoined by multiple federal courts.
Today the final shoe dropped. A federal district court in Texas enjoined enforcement of the mandate requiring all federal employees to be vaccinated or face termination (Executive Order No.14043). Discipline was scheduled to start on January 21.
Judge Jeffrey Brown prefaced his decision by noting:
[T]his case is not about whether folks should get vaccinated against COVID-19—the court believes they should. It is not even about the federal government’s power, exercised properly, to mandate vaccination of its employees. It is instead about whether the President can, with the stroke of a pen and without the input of Congress, require millions of federal employees to undergo a medical procedure as a condition of their employment.
Judge Brown, citing the Supreme Court’s recent OSHA decision, held that even though the president has statutory authority to regulate the “workplace conduct” of federal employees and executive branch employment policies, COVID-19 represents a general health risk, not a workplace health risk and a vaccine mandate is not an employment regulation. Therefore, he reasoned, the president lacks statutory authority to issue the employment mandate.
The government also asserted that the president has inherent authority under Article II of the constitution to impose a mandate. But Judge Brown noted that Article II powers are not unlimited. The fact that no president or other arm of the federal government had ever invoked “the power to impose medical procedures on civilian federal employees” suggests that allowing it would exceed the limit.
The court also questioned the pressing need for such a mandate, noting that “an overwhelming majority of the federal workforce is already vaccinated.” The least vaccinated agency exceeded 88 percent vaccinated. It wondered why the government did not apply less restrictive and invasive measures.
The court granted a nationwide injunction against enforcing the act. So far, the Biden administration’s mandate initiatives are only one for four—not bad for baseball, but pretty poor for policy making.