How the Recent Supreme Court Ruling Is Already Impacting Feds' Challenges to Biden's Vaccine Mandate
Groups say their cause tracks the case against the OSHA rule that the top court recently struck down, but that precedent may have greater influence on the contractor mandate.
The recent Supreme Court ruling knocking down one of President Biden’s key strategies in fighting COVID-19 could influence the ongoing legal fight regarding his vaccine mandate for the federal workforce, even as federal agencies have seen overwhelming compliance with the directive.
There are more than a dozen cases pending before federal courts seeking to strike down Biden’s mandate for federal employees, some of which are adapting their strategies after the Supreme Court struck down the private sector vaccine-or-test requirement. None of those cases have yet found any success in putting an immediate pause on the mandate, as have cases involving federal contractors and in the private sector, but more lawsuits continue to crop up.
A newly formed group called Feds for Medical Freedom has three such cases pending around the country. It claims more than 6,000 members with significant experience in government. Immediately after the Supreme Court ruling, the group issued a new court filing arguing the federal employee mandate closely tracked the now moot private sector mandate. The Centers for Medicare and Medicaid Services mandate for health care workers at facilities that receive federal funding that the court upheld was much more narrow in focus, the group argued, whereas the Occupational Safety and Health Administration lacked clear statutory authority for its rule focused on the private sector.
Like the OSHA rule that the Supreme Court struck down, the federal employee mandate applied to every worker indiscriminately. Because the requirement applies regardless of an individual’s job, the group’s legal team argued the court’s finding that the risk of COVID-19 is untethered from the workplace applied to its case as well. The pandemic is part of the hazards of daily life, they said, again quoting the court’s majority ruling, and both OSHA and the president have never issued such mandates before.
The Biden administration pushed back on Tuesday, saying in a new filing that the federal government, like any employer, can choose to impose a mandate on its employees.
“The president possesses independent constitutional authority to act as CEO of the executive branch, even absent confirming statutory authority from Congress,” Justice Department officials in Texas wrote. They added the OSHA rule affected 84 million private sector employees, whereas the president’s mandate is aimed at a much smaller group.
It is “not at all surprising” the president has never issued such a mandate previously, the officials said, and restricting the executive branch’s ability to respond to novel circumstances would prevent it from dealing with the pandemic at all. They further suggested that President Reagan’s drug-testing mandate for feds was an example of the executive branch responding to a new epidemic of drug use. The officials also said the Merit Systems Protection Board, rather than the federal circuit, would be the appropriate forum to resolve the case.
The origins of lawsuits against the mandate have ranged from a state attorney general—Mark Brnovich, R-Ariz.—to a federal employee union—the group representing Bureau of Prisons workers. Judge Michael Liburdi, overseeing Brnovich’s case in the U.S. District Court of Arizona, quickly ordered both parties to “address the Supreme Court’s recent opinion” in the OSHA case. The latest suit was filed in Wyoming by America First Legal, a group led by former top Trump White House officials such as Stephen Miller, Mark Meadows and Russ Vought.
“President Biden is not a king, his administration is no royal court, and he has no inherent authority to act in this tyrannical way and intrude on the rights of all federal employees,” said Gene Hamilton, the group’s general counsel. “This case is a righteous fight not only for our client, but for all federal employees, and for the separation of powers.”
James Hodge, a law professor and director of the Center for Public Health Law and Policy at Arizona State University, said he does not expect either the OSHA or CMS case to have much impact on the federal employee mandate, as the Supreme Court has previously found employers are entitled to require vaccinations for their own employees.
“The federal employee mandate—I’m not going to say it’s bullet proof, but it’s pretty solid,” Hodge said.
He predicted the OSHA case ruling could have a more significant impact on the federal contractor vaccine mandate, as the Supreme Court’s conservative majority has made clear it opposes broad readings of statutory language to authorize the mandatory inoculations. Federal agencies are generally entitled to set the conditions by which contractors can receive funds, but the court may find Congress has not specifically authorized federal agencies to include vaccination requirements. Three separate federal courts have held up enforcement of the contractor mandate after states brought challenges and implementation remains on hold. Hodge suggested the Supreme Court is unlikely to take up either a federal employee or contractor mandate case, instead allowing the lower circuits to make rulings based on its related opinions.
Feds for Medical Freedom, the group bringing three separate lawsuits against Biden’s mandate, is expecting thousands of its members to participate in the March to Defeat the Mandates on Jan. 23 in Washington. The overwhelming majority of federal workers across government have come in compliance with the mandate, though agencies are beginning to initiate suspensions for those who still have not gotten vaccinated or requested an exemption.
Marcus Thornton, a foreign service officer with the State Department who leads the anti-mandate group, said his group has grown by word of mouth and is expecting a big turnout for the upcoming rally. He called it "encouraging" that the Supreme Court struck down the OSHA rule and is hopeful for an injunction on the federal employee mandate in the coming weeks. Thornton has received a letter of counseling from State regarding his non-compliance with the mandate—the administration’s recommended first step in the progressive disciplinary process—and is prepared to lose his job if his group fails in court.
"If the government moves forward with firing these people," he said, "there are going to be significant impacts and repercussions for national security and government operations." The administration has repeatedly rejected that suggestion, predicting agencies' missions would be unaffected.