The Biden administration’s willingness to skirt normal legislative processes has resulted in every Covid-vaccine policy being subjected to judicial review.
The Biden administration’s willingness to skirt normal legislative processes has resulted in every Covid-vaccine policy being subjected to judicial review.
M eat Loaf, the quirky rock star who just died, had a hit with Two Out of Three Ain’t Bad. The Biden administration wishes it could do that well. With the new decision of a federal district court in southern Texas enjoining enforcement of the vaccine mandate for federal workers, Biden is one out of four.
Realizing that Congress had never enacted a law requiring American civilians to be vaccinated, and that it is unclear whether it has the constitutional authority to do so, the administration sought — in the words of White House chief of staff Ron Klain — “work-arounds.” The administration issued four Covid-19 vaccination mandates by borrowing authority from the nooks and crannies of existing laws.
The Supreme Court recently reviewed the two mandates that were issued via administrative-agency regulations. In the first case, dealing with the Occupational Safety and Health Administration’s (OSHA) mandate for businesses with 100 or more employees, the Court found that the agency had exceeded its statutory authority, and it halted enforcement of the mandate. The rule would have affected 84 million private-sector workers. If Congress intended OSHA “to exercise powers of vast economic and political significance” the Court wrote, it had to “speak clearly” in its statutory language.
The second case upheld a rule issued by the Centers for Medicare and Medicaid Services (CMS) requiring health-care facilities receiving Medicare and Medicaid funding to vaccinate their staff. A narrow majority of the Court (5–4) found that provisions scattered throughout the statute gave HHS the authority to issue regulations necessary to ensure that health-care providers protect patients’ health and safety.
Two other mandates were issued via executive orders in September. EO 14042 compelled businesses contracting with the federal government to require their employees to be vaccinated or lose their contracts. Five different district courts have stayed enforcement of the order, including one with a nationwide injunction. These injunctions are being reviewed by three different courts of appeals and are likely to be upheld.
The latest ruling in Texas reviews EO 14043, which requires all federal employees to be vaccinated or face termination. Enforcement was scheduled to begin January 21.
At the outset, Judge Jeffrey Brown noted that “this 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.”
The administration asserted that the president has the authority to mandate vaccines under three sections of the civil service law. But Judge Brown found that these sections — civil-service applicant regulations, civil-service rules exemptions, and the workplace conduct of executive-branch employees — are not broad enough to encompass authority to mandate vaccination. He cited the Supreme Court’s OSHA decision, which held that “COVID-19 is not a workplace risk, but rather a ‘universal risk’ that is ‘no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.’” That means a vaccine mandate is not an employment regulation of workplace conduct, but something more akin to a broad public-health measure that the president lacks the statutory authority to issue.
Judge Brown was also unconvinced by the administration’s claim that the president has inherent authority under Article II of the Constitution to impose a mandate. 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 no such authority exists.
Judge Brown concluded that the balance of equities tips against government enforcement of a mandate since “an overwhelming majority of the federal workforce is already vaccinated” so that there is little benefit to “be balanced against the harm sure to come by terminating unvaccinated workers who provide vital services to the nation.” He questioned why the government could not apply less restrictive measures, a pertinent inquiry with vaccines that barely limit transmission of the currently dominant Omicron strain.
The Biden administration’s willingness to skirt normal legislative processes has resulted in every policy being subjected to judicial review. In that forum, two out of three ain’t bad. One out of four signifies incompetence and overreach.