The Fifth Circuit yesterday refused to block Judge Brown's nationwide injunction - even though twelve other District Judges have refused to block the vaccine requirement for federal employees. Circuit Judge Stephen Higginson in his dissent said:
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 is performing his role as CEO of the federal workforce...
One can look at this ruling, like the NFIB v. Biden order striking the OSHA vaccine rule and conclude that there is a direct line between Brown's thinking and the truckers blockading Ottawa. They hate the government and are determined to block it from protecting the public health. In order to prove that government is ineffective they will themselves hobble it.
- GWC
On Friday afternoon, U.S. District Court Judge Jeffrey Vincent Brown blocked President Joe Biden’s COVID-19 vaccine mandate for the federal workforce and issued a nationwide injunction ensuring no other district court could revive the policy. At least a dozen other courts have already declined to halt this policy, but Brown decided that they were wrong. His decision rests on several egregious misreadings of the law. Most notably, Brown—a Donald Trump nominee and Federalist Society stalwart—rewrote a major statute to vastly diminish the president’s power over federal employees. In doing so, he has imperiled a broad swath of civil service regulations that have nothing to do with vaccines, including the longstanding ban on drug use outside of the office.
Presidents have sweeping authority over federal workers under both the Constitution and federal law. Biden drew upon both sources to issue his mandate (which includes medical and religious exemptions). Of all the White House’s vaccine policies, this one is on the strongest legal footing, because it does not implicate the Supreme Court’s concerns about federalism or the separation of powers. Until now, it appeared that across the ideological spectrum, judges agreed that the chief executive has wide latitude to regulate his own workforce. That’s one reason why federal courts in Arizona, the District of Columbia, Florida, Maryland, New Jersey, Oklahoma, Texas, and Washington refused to freeze the mandate.
Congress acknowledged and formally bestowed these powers in a 1966 statute called Section 7301. It states: “The President may prescribe regulations for the conduct of employees in the executive branch.” Ever since, presidents have relied on this law to alter and update employment conditions for the civil service.
Most famously, Section 7301 provides the legal basis for the prohibition on illegal drug use among federal employees, as well as drug testing programs to enforce the rule. But presidents have used the law to implement plenty of other policies, including a ban on federal employees accepting gifts from lobbyists; a ban on tobacco use in federal workplaces; a detailed “revolving door” ban limiting federal employees’ ability to become lobbyists after their service; an expansive ethics code barring federal employees from various conflicts of interest on and off the job; a requirement that federal workplaces accommodate nursing mothers; and so much more.
It was no surprise, then, that Biden relied on Section 7301 in issuing his vaccine mandate for the civil service. But Brown has a radically different interpretation of the statute. He declared that the president may only regulate “workplace conduct” under the law—and getting vaccinated does not qualify. Brown elaborated: “Any broader reading would allow the president to prescribe, or proscribe, certain private behaviors by civilian federal workers outside the context of their employment” he wrote. “Neither the plain language of Section 7301 nor any traditional notion of personal liberty would tolerate such a sweeping grant of power.”
What? Had Brown simply Googled this statute, he would have immediately learned, in fact, this “sweeping grant of power” is exactly what the law provides.
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