President Biden issued four orders purporting to require vaccinations in various populations. Two of those mandates have been addressed by the Supreme Court. The other two were challenged in a case brought in Texas by a group called Feds for Medical Freedom. Earlier today, U.S. District Judge Jeffrey Brown issued an order enjoining the federal government from enforcing Biden’s mandate that all federal employees be vaccinated, or lose their jobs.
Judge Brown’s order is here. I have not studied these issues exhaustively, but from a quick read it seems persuasive. Judge Brown relied in part on the Supreme Court decision that barred implementation of an OSHA rule that would have required all employers of more than 100 people to force their employees to be vaccinated, or else fire them.
This is the key section of the court’s opinion:
The final statutory authority on which the government relies is § 7301, which provides in its entirety: “The President may prescribe regulations for the conduct of employees in the executive branch.” 5 U.S.C. § 7301. According to the government, “the act of becoming vaccinated” is “plainly ‘conduct’” within the meaning of the statute. Dkt. 21 at 27.
But the plaintiffs argue that rather than regulate “conduct,” the federal-worker mandate compels employees to assume a vaccinated “status,” and “one that is untethered to job requirements, no less.” Dkt. 3 at 12. Moreover, the plaintiffs contend, even if becoming vaccinated is “conduct,” it is not “workplace conduct,” which is all that § 7301 reasonably authorizes the President to regulate. Dkt. 23 at 12.
Assuming that getting vaccinated is indeed “conduct,” the court agrees with the plaintiffs that under § 7301, it must be workplace conduct before the President may regulate it. Any broader reading would allow the President to prescribe, or proscribe, certain private behaviors by civilian federal workers outside the context of their employment. Neither the plain language of § 7301 nor any traditional notion of personal liberty would tolerate such a sweeping grant of power.
So, is submitting to a COVID-19 vaccine, particularly when required as a condition of one’s employment, workplace conduct? The answer to this question became a lot clearer after the Supreme Court’s ruling in NFIB earlier this month. There, the Court held that the Occupational Safety and Health Act of 1970, 29 U.S.C. § 15 et seq., allows OSHA “to set workplace safety standards,” but “not broad public health measures.” NFIB, 595 U.S. ___ slip op. at 6. Similarly, as noted above, § 7301 authorizes the President to regulate the workplace conduct of executive-branch employees, but not their conduct in general. See 5 U.S.C. § 7301. And in NFIB, the Supreme Court specifically 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.” NFIB, 595 U.S. ___ slip op. at 6. Accordingly, the Court held, requiring employees to get vaccinated against COVID-19 is outside OSHA’s ambit. Id. Applying that same logic to the President’s authority under § 7301 means he cannot require civilian federal employees to submit to the vaccine as a condition of employment.
That reasoning appears sound to me. So one more attempt by the Biden administration to act unlawfully, to jam extreme measures down the throats of Americans, has fallen short. Joe Biden is compiling a record of failure that is truly impressive.