Protesters carry banners as thousands gather near Lincoln Memorial to stage a protest against vaccine mandates on Jan. 23, 2022.

Protesters carry banners as thousands gather near Lincoln Memorial to stage a protest against vaccine mandates on Jan. 23, 2022. Yasin Ozturk/Anadolu Agency via Getty Images

Biden asks Supreme Court to salvage a president’s right to issue federal workforce mandates

The White House’s vaccine mandate is no longer in effect, but the Biden administration is worried about precedent.

While President Biden has revoked his mandate that all federal employees receive a COVID-19 vaccine, his administration is asking the Supreme Court to vacate the 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 is now seeking to prevent a wider, precedent-setting ruling that would rewrite presidential authorities by instead having the case dismissed as no longer relevant. 

The Biden administration asserted in its request similar arguments it has made throughout the lengthy legal battle, including that the president has long had the power to set policy regarding the conduct of federal employees and that civil servants must take their grievances to the procedures spelled out in the Civil Service Reform Act. 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 Justice Department requested the Supreme Court accept the case—a process known as granting a writ of certiorari—vacate the ruling against the administration and instruct the district judge to dismiss the case as moot. Many of the issues at stake in the appeal to the Fifth Circuit  “are no longer the subject of any live controversy,” the Justice Department attorneys said. 

Put simply, they added, Biden’s order “no longer exists to be enjoined.” 

While they recognized the court’s precedent precludes a defendant from claiming a case moot because it ends the aggrieving behavior once sued, the attorneys suggested that logic did not apply in this case because Biden only revoked the order due to the waning impact of the pandemic. 

While the plaintiffs previously argued the government could reinstate the mandate at any time, the Biden administration said that was unlikely. 

“At this time, no reasonable prospect exists that the government will resume enforcing the same policy challenged here,” the Justice attorneys said. Any change would be responsive to a change in circumstances of the spread of COVID-19, they federal lawyers added. 

The Biden administration also expressed concern about the precedent set by the appellate court. 

The decision “erroneously resolves important questions of presidential authority and the proper scope of equitable relief,” it said. It also opens the door to employees regularly finding workarounds to civil service laws to instead bring their cases to federal courts. 

"This administration's COVID vaccine mandate is immoral, unscientific and unconstitutional,” said Marcus Thornton, president of Feds for Medical Freedom. “We applaud the lower courts for blocking its implementation and we look forward to continuing our advocacy for the rights and liberties of federal workers and all Americans in front of the Supreme Court.”

Prior to the government’s appeal to the Supreme Court, the group was seeking a summary judgment from the court without the need for additional proceedings. Additionally, the group had 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. 

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.