NEW ORLEANS – President Joe Biden has the same authority to impose a COVID-19 vaccine requirement on federal workers that private employers have for their employees, an administration lawyer told a federal appeals court Tuesday.
A lawyer for opponents of the vaccine requirement, which has been blocked nationwide by a federal judge in Texas, said the requirement imposes an “unconstitutionally intolerable choice” for executive branch workers — taking a vaccine they don't want or losing their jobs.
Judges on the appeals court meanwhile questioned how far the chief executive's authority goes, asking, theoretically, whether the president could require employees to meet certain healthy body weights or forbid them from smoking at home.
It was the second time arguments on the issue were heard before the 5th U.S. Circuit Court of Appeals. A three-judge panel of the same court had upheld the Biden requirement for executive branch workers, overturning the Texas judge.
But the full appeals court, currently with 16 active members, vacated the panel ruling and agreed to rehear the case. There was no indication when the court would rule.
Administration lawyers argue that the employees opposing the mandate should have taken their objections not to federal court but to a federal review board, in accordance with the Civil Service Reform Act. The administration also argues that the president has the same authority, under the Constitution, as the CEO of a private corporation to require that employees be vaccinated.
Arguing for the government, Charles Scarborough of the Department of Justice, said the statute provides employees with “robust” remedies if they successfully challenge the requirement through the review board, including back pay if they are dismissed for not complying.
Addressing whether the president could impose body weight requirements on federal employees, Scarborough said the vaccine requirement is part of a mainstream effort to reduce the incidence of serious COVID-19 cases in the workplace, while a body weight requirement would be among “hypotheticals at the extremes.”
Opponents say the policy is an encroachment on federal workers' lives that neither the Constitution nor federal statutes authorize. And they argued that a case involving a policy that could cost some workers their jobs if they don't agree to a medical procedure is not the type of work policy that belongs before a civil service review board.
Biden issued an executive order Sept. 9 ordering vaccinations for all executive branch agency employees, with exceptions for medical and religious reasons. U.S. District Judge Jeffrey Brown, who was appointed to the District Court for the Southern District of Texas by then-President Donald Trump, issued a nationwide injunction against the requirement in January.
There came a series of varying rulings at the 5th Circuit.
One three-judge panel refused to immediately block the law.
But, a 2-1 ruling on the merits of the case by a different panel 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, a senior judge 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.
A majority of the full court voted to vacate that ruling and reconsider the case, resulting in Tuesday's hearing.
Twelve of 16 active judges at the 5th Circuit were nominated to the court by Republicans, including six Trump appointees. Senior judges do not routinely take part in full-court hearings but Barksdale participated in the hearing Tuesday because he had been on the earlier panel.