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02/14/2022

Mark Joseph Stern on the Federal Employee Vaccine Mandate
Michael Ramsey

I don't often agree with Slate's polemical left-wing legal commentator Mark Joseph Stern, but I think he's right on this one: The 5th Circuit Just Rewarded a Brazen Heist of Presidential Power.  As he explains: 

[T]he 5th U.S. Circuit Court of Appeals upheld one of the most egregious abuses of the federal judiciary in memory. By a 2–1 vote, the court refused to halt a Trump judge’s nationwide injunction barring President Joe Biden from requiring his own workforce to get vaccinated against COVID-19. 

...

It’s important to understand at the outset that this case, Feds for Medical Freedom v. Biden, is fundamentally different from other vaccine-related lawsuits. Previous cases tested the limits of the executive branch’s authority to compel private companies—including federal contractors and recipients of government funding—to impose a vaccine mandate (or a vaccinate-or-test policy) on their workers. Feds for Medical Freedom involves a very different workforce: the executive branch of the United States government. The president, of course, is the head of the executive branch, and according to the Supreme Court, he holds all executive power. Although the chief executive often delegates oversight of his roughly 2.1 million employees, he is, as a constitutional matter, their boss. Congress has acknowledged this fact in a sweeping law that allows the president to “prescribe regulations for the conduct of employees in the executive branch.” And the Supreme Court has recognized that, under both this statute and his inherent constitutional authority, the president bears responsibility for “the efficient operation of the executive branch.”

And from Judge Stephen Higginson's dissent from the 5th Circuit order:

“Under our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully executed.’” Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2191 (2020) (quoting U.S. Const. art. II, § 1, cl. 1; id. § 3). The President’s executive power has long been understood to include “general administrative control of those executing the laws.” Id. at 2197-98 (quoting Myers v. United States, 272 U.S. 52, 163-64 (1926)). Accordingly, the President “has the right to prescribe the qualifications of [Executive Branch] employees and to attach conditions to their employment.” Friedman v. Schwellenbach, 159 F.2d 22, 24 (D.C. Cir. 1946); see also Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974) (noting “the President’s responsibility for the efficient operation of the Executive Branch”); Crandon v. United States, 494 U.S. 152, 180 (1990) (Scalia, J., concurring in the judgment) (describing “the President’s discretion-laden power” to regulate the Executive Branch under 5 U.S.C. § 7301); Nat’l  Treasury Emps. Union v. Bush, 891 F.2d 99 (5th Cir. 1989) (upholding President Reagan’s executive order authorizing random drug testing of certain federal employees). Thus, the President, as head of the federal executive workforce, has authority to establish the same immunization requirement that many private employers have reasonably imposed to ensure workplace safety and prevent workplace disruptions caused by COVID-19. 

...

Though the district court asserted, without evidence or citation, that “there is no reason to believe that the public interest cannot be served via less restrictive measures than the mandate” and that “[s]topping the spread of COVID-19 will not be achieved by overbroad policies like the federal-worker mandate,” the public interest is not served by a single Article III district judge, lacking public health expertise and made unaccountable through life tenure, telling the President of the United States, in his capacity as CEO of the federal workforce, that he cannot [impose the vaccine mandate].

Agreed.  The power to supervise the executive branch is vested in the President by Article II, Section 1.  It isn't subject to court review to determine whether in the court's opinion "the public interest [could] be served via less restrictive measures."  That is a court attempting to exercise executive power.

Plus (as both Stern and Judge Higginson note), even if the court were right on the merits, the issuance of a nationwide injunction here is surely beyond the judicial power.  From Judge Higginson's dissent: 

However, even if I were to conclude that the motion should be denied with respect to these plaintiffs, I would grant the  government’s motion insofar as the district court’s nationwide preliminary injunction applies to any person or entity that is not either a named plaintiff or an individual possessing, at the time the complaint was filed, bona fide indicia of membership in one of the plaintiff organizations. As we recently explained, nationwide injunctions “can constitute ‘rushed, high-stake, low-information decisions,’ while more limited equitable relief can be beneficial.” Louisiana v. Becerra, 20 F.4th 260, 264 (5th Cir. 2021) (quoting Department of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of a stay)); see also Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring) (observing that nationwide injunctions “are beginning to take a toll on the federal court system—preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch”). [also citing Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 421, 424 (2017)].

Even if one credits my colleague Mila Sohoni's defense of nationwide injunctions in some cases, this seems clearly not one of those cases.  The judge has no authority to go beyond the relief necessary to protect the plaintiffs, and I cannot imagine how a nationwide injunction is needed to protect the plaintiffs in this case (again, even assuming they are right on the merits).

So Stern's outrage seems justified in this instance.  I don't recall, though, any similar outrage from him regarding nationwide injunctions overturning exercises of executive discretion during the Trump administration.