The Justice Department will appeal a federal judge’s nationwide preliminary injunction against President Joe Biden’s executive order mandating that all federal workers consent to be vaccinated against Covid-19 or else face termination.
The order poses a substantial threat of irreparable harm to the “liberty interests of employees who must choose between violating a mandate of doubtful validity or consenting to an unwanted medical procedure that cannot be undone,” Judge Jeffrey V. Brown of the U.S. District Court for the Southern District of Texas said.
There’s also a strong likelihood that the plaintiffs, who represent federal workers, will prevail in challenging the order, Brown said.
A DOJ spokesman tweeted later Friday that the department “is filing a notice of appeal.”
The order, which was issued Sept. 9, likely exceeds the president’s constitutional and statutory authority in light of the U.S. Supreme Court’s Jan. 13 decision on the Occupational Safety and Health Administration’s vaccine rule, Brown said.
The Supreme Court held that Covid-19 vaccine mandates are not employment regulations, reasoning that the virus is “a universal risk,” not a workplace one, in determining that OSHA lacked the authority to require workers to get vaccinated, Brown said.
Applying this reasoning to the president, then, means that even though he has the power to regulate the workplace conduct of federal employees under certain statutes, he still can’t force them to get vaccinated as a condition of employment, Brown said.
“This case is not about whether folks should get vaccinated against COVID-19—the court believes they should,” Brown noted.
But the president’s order, which took effect without any congressional input, is “a bridge too far,” he said.
While the government has “an undeniable” public health interest in preventing the spread of Covid-19, it hasn’t adequately shown that blocking this particular vaccine mandate will have “a serious detrimental effect” on this goal, Brown said.
“An overwhelming majority” of federal employees are already vaccinated, and there are less-restrictive ways to further the public interest, like masking and social distancing, Brown noted.
Brown also rejected the government’s assertions that the court lacked jurisdiction to hear the matter because the plaintiffs’ claims are barred by the Civil Service Reform Act and not ripe for review.
Boyden Gray & Associates PLLC represents the plaintiffs. The U.S. Attorney’s Office represents the government.
The case is Feds for Medical Freedom et al v. Biden, S.D. Tex., No. 3:21-cv-00356, 1/21/22.