NEW ORLEANS – President Joe Biden’s order that federal employees get vaccinated against COVID-19 has been blocked by a federal appeals court.
The 5th U.S. Circuit Court of Appeals in New Orleans, in a decision Thursday, rejected arguments that Biden, as the nation’s chief executive, has the same authority as the CEO of a private corporation to require that employees be vaccinated.
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 White House defended the order, citing the high compliance rate among the federal workforce and saying in a statement Friday that “vaccination remains one of the most important tools to protect people from serious illness and hospitalizations” against COVID.
Opponents of the policy said it was an encroachment on federal workers’ lives that neither the Constitution nor federal statutes authorize.
Biden issued an executive order in September 2021 requiring vaccinations for all executive branch agency employees, with exceptions for medical and religious reasons. The requirement kicked in the following November. U.S. District Judge Jeffrey Brown, who was appointed to the District Court for the Southern District of Texas by Trump, issued a nationwide injunction against the requirement the following January.
The case then went to the 5th Circuit.
One panel of three 5th Circuit judges refused to immediately block the law.
But a different panel, after hearing arguments, upheld Biden’s position. Judges Carl Stewart and James Dennis, both nominated to the court by President Bill Clinton, were in the majority. Judge Rhesa Barksdale, nominated by President George H.W. Bush, dissented, saying the relief the challengers sought does not fall under the Civil Service Reform Act cited by the administration.
The broader court majority agreed, saying federal law does not preclude court jurisdiction over cases involving "private, irreversible medical decisions made in consultation with private medical professionals outside the federal workplace."
A majority of the full court voted to vacate that ruling and reconsider the case. The 16 active judges heard the case on Sept. 13, joined by Barksdale, who is now a senior judge with lighter duties than the full-time members of the court.
Judge Stephen Higginson, a nominee of President Barack Obama, wrote the main dissenting opinion. "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."
The date of President Joe Biden's executive order has been corrected to September 2021, not last September.