One of the hallmarks of the Biden administration has been the President’s stunning use of executive orders. Of course, he is far from the first person to sit in the Oval Office and make sweeping use of this power, but he literally set new records for the issuance of such decrees during his first two months in office. Many of his orders dealt with the government’s response to the pandemic, with one of the more sweeping ones being his order for all federal workers to be “fully vaccinated” against COVID, though the definition of fully vaccinated has changed several times.
But that order ran into trouble almost immediately. It was challenged by unions and workers who did not wish to comply or were not granted exemptions. Those court cases have kept the mandate on the sidelines for more than a year. This month the question has landed in the lap of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, and based on some of the questions that the judges have been posing to Justice Department attorneys, the prospects for Joe Biden’s mandate for all federal employees to be vaccinated are not looking very sunny. Those questions run deeper than the simple question of whether or not the President can require COVID vaccines, probing what, if any limits exist on the President’s power to mandate issues that are traditionally left up to the individual and their medical professional. This report from Eric Katz at Government Executive has the details.
A federal appeals court asked the Biden administration where the president’s authority to issue edicts over the civil service ends, leaving open the possibility it will rule the White House overstepped when it mandated most federal employees receive the COVID-19 vaccine mandate.
Various judges of the full U.S. Court of Appeals for the Fifth Circuit in New Orleans asked a Justice Department attorney whether the president could also require federal employees to reach a certain weight, refrain from smoking at home, limit themselves to one child or take birth control under the same rationale he used to mandate the vaccines. The questioning took place in the oral arguments of the en banc hearing of the Fifth Circuit after the full court agreed to rehear the case and restore a nationwide injunction on the requirement. A panel of the court previously ruled in favor of the government, saying the plaintiffs did not have standing to bring their lawsuit.
“What I’m suggesting is there is no limit to the principle that you are espousing, which is we are requiring federal employees to take the vaccine mostly for their own good,” one judge said at the hearing.
Those are interesting questions indeed and many of us could likely add on a few more examples. While smoking can be prohibited in the workplace, can the White House tell workers not to smoke in places away from federal property where it is not prohibited? What is the emergency being addressed if he did so? What about a different “emergency” entirely? As an example, let’s say that the workforce labor shortages continue and accelerate to the point where the President believes that the needs of the people can no longer be met in terms of government services. Could he mandate female employees who become pregnant terminate their pregnancies so that they won’t have to leave the workforce? Conversely, if the nation’s birthrate continues to plunge to the point where we no longer have a viable population for the next generation, could he force pregnant women who are leaning toward terminating their pregnancy to carry their child to term?
I understand the radical nature of those examples and they do go further than the vaccine mandate, but they are not totally unrelated. That brings us back to the questions that the judges are posing to the Department of Justice. What is the current nature of the state of emergency and what public benefit is derived from the vaccine mandate? We’ve been told that the pandemic is largely behind us and most of the restrictions and mandates have been lifted across much of the country. Is there still an urgent threat that would be countered by the vaccine mandate? Even if you reject that idea, is the workplace being protected? We have already learned that the new vaccines do not actually prevent you from catching COVID. Joe Biden and the First Lady both proved that in back-to-back episodes. And if you catch COVID, you can spread COVID, right? That’s what we’ve been told from the beginning. So how is the mandate keeping the rest of the workforce any safer?
For their part, the attorneys for the Justice Department described the judges’ questions as “extreme hypotheticals” but conceded that the arguments before the court invited such comparisons. They added that “the president has historically placed many conditions on employment in the federal workforce, such as through detailed background checks, requirements to avoid conflicts of interest and prohibitions on drug use. ”
Yet background checks and drug use imply the possibility of previous criminal behavior or reckless habits that might result in poor job performance or even violations of the law in the workplace. Catching the flu has never been considered a negative character trait or a significant threat to workplace safety more than any other contagious diseases that have made the rounds in the past. If COVID is largely under control at this point and all the people who want to be vaccinated have had the opportunity, what is the threat and how should you “neutralize” it?
One issue that the court will not be able to rectify even if they strike down the mandate permanently is the question of what will become of all of the workers who left their careers rather than comply with the mandate. Will they be allowed to return, assuming they even want to after the way they were treated? And what of those who completely opposed taking the vaccine but did so anyway in order to keep their careers intact and plan for their families’ futures? There is no way to take those shots back out of their arms now.
These are all questions that everyone will be wrestling with sooner or later, not just the judges of the Fifth Circuit. And the public clearly deserves answers.
