(CN) — Stressing the need to ensure the health, safety and efficiency of the civil service, President Joe Biden issued an executive order last September requiring all federal agencies to implement Covid-19 vaccine requirements for their staff.
More than 90% of the government’s roughly 2.1 million civilian workers have complied. But some members of a nonprofit called Feds for Medical Freedom have successfully resisted in court.
They convinced U.S. District Judge Jeffrey Brown, a Donald Trump appointee, to block the mandate in January with a nationwide preliminary injunction.
Brown found Biden had exceeded his power to regulate the conduct of civilian federal employees, noting the government had provided no examples of a president imposing medical procedures on the federal workforce.
Justice Department attorney Charles Scarborough pressed a three-judge panel of the Fifth Circuit to lift the injunction Tuesday.
“The vaccine mandate is a response to an unprecedented situation in this country,” Scarborough said. “So we can’t provide a situation where a president has acted in this way. Nevertheless, that doesn’t mean it’s not a lawful exercise of authority.”
Scarborough argued Biden, as CEO of the executive branch, should be able to implement a Covid vaccine requirement as numerous CEOs of private companies have done for their employees.
When Biden issued the mandate, hospitals across the country were overwhelmed with seriously ill patients stricken with the delta variant and the number of Americans testing positive was growing by the thousands every day.
U.S. Circuit Judge Rhesa Barksdale, a George H.W. Bush appointee, pointed out the coronavirus situation today is much less grim, as many Americans now have immunity from vaccines or natural antibodies after recovering from an infection.
In late February, the Centers for Disease Control and Prevention announced it was no longer advising masks be worn indoors in areas with low to moderate Covid transmission rates. Governors in 27 states have allowed Covid-19 emergency orders to lapse.
“What judicial notice do we take of the lessening Covid illnesses, mask mandates being dropped, et cetera, et cetera. Do we give any consideration of that?” Barksdale asked.
“I don’t think we do,” Scarborough replied. He said government agencies are moving away from a “maximum telework posture” and bringing their staff back to the office. “They’re going to be coming back into the workplace and that’s really important they come into those workplaces vaccinated.”
Scarborough stated Biden had made the reasonable determination that vaccination remains the most effective tool against Covid, more so than social distancing, masking and testing, which would be prohibitively expensive. “The calculation was made that regular testing for just 2% of the [federal] workforce would cost $11 to $22 million each month,” he said.
Besides that, Scarborough added, the objectors lack standing because the Civil Service Reform Act of 1978 dictates they must challenge any discipline they receive for eschewing the vaccine through an administrative process, not a federal lawsuit.
But Trent McCotter, counsel for Feds for Medical Freedom, countered that the CSRA and Supreme Court precedent do not foreclose such pre-enforcement facial challenges to employment policies.





