The 5th U.S. Circuit Court of Appeals in New Orleans ruled in an en banc hearing (special procedure where all judges of the court hear a case) that President Joe Biden cannot force the COVID vaccine on federal employees:
The ruling from the full appeals court, 16 full-time judges at the time the case was argued, reversed an earlier ruling by a three-judge 5th Circuit panel that had upheld the vaccination requirement. Judge Andrew Oldham, nominated to the court by then-President Donald Trump, wrote the opinion for a 10-member majority.The ruling maintains the status quo for federal employee vaccines. It upholds a preliminary injunction blocking the mandate issued by a federal judge in January 2022. At that point, the administration said nearly 98% of covered employees had been vaccinated.And, Oldham noted, with the preliminary injunction arguments done, the case will return to that court for further arguments, when “both sides will have to grapple with the White House’s announcement that the COVID emergency will finally end on May 11, 2023.”
The court said Biden is not like a CEO of a private business:
In reality, however, the President actually controls surprisingly little of the Executive Branch. Only a tiny percentage of Executive Branch employees are subject to Presidential removal. The overwhelming majority of federal employees, by contrast, are protected against Presidential removal by civil service laws.
Biden issued the mandate via executive order in September 2021. Secretary of Defense Lloyd Austin ended the mandate for the military in January 2023.
The District Court for the Southern District of Texas issued a nationwide injunction on the mandate in January 2022.
A three-judge panel of the 5th Circuit refused to block the mandate.
Another panel of the 5th Circuit upheld Biden’s mandate. Judge Rhea Barksdale said Biden’s argument do not “fall under the Civil Service Reform Act.”
But 10 of the 16 active judges disagreed. Judge Stephen Higginson wrote the dissent for the minority:
“For the wrong reasons, our court correctly concludes that we do have jurisdiction,” Higginson wrote. “But contrary to a dozen federal courts — and having left a government motion to stay the district court’s injunction pending for more than a year — our court still refuses to say why the President does not have the power to regulate workplace safety for his employees.”
He wrote:
The President is not an unelected administrator. He is instead the head of a co-equal branch of government and the most singularly accountable elected official in the country. This federal workplace safety order displaces no state police powers and coerces no private sector employers. Instead, consistent with his Article II duty to “take Care that the Laws be faithfully executed,” the President performed his role as CEO of the federal workforce, taking executive action in order to keep open essential government buildings; to maintain the provision of vital government services, such as the Transportation Security Administration; and to prevent unvaccinated federal employees from infecting co-workers or members of the public who, whether because of age or infirmity, might be highly vulnerable to hospitalization and death.
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