Last week, a federal judge in Texas blocked a presidential executive order that sought to require COVID-19 vaccination for federal workers. But the decision isn’t a game-changing blockbuster.
Trump appointee Jeffrey Vincent Brown has served as a district court judge in the Southern District of Texas since September of 2019. He ruled that the order’s mandate could not stand because President Biden lacked the authority to issue it.
The government told Brown that the president’s authority to issue the order exists in three federal statutory sections: 5 U.S.C. § 3301, 5 U.S.C. § 3302 and 5 U.S.C. § 7301.
The first section generally empowers the president to regulate the admission of individuals for civil service into the executive branch, while also saying the president may “ascertain the fitness of applicants as to … health.”
Section 3302 simply says that the president “may prescribe rules governing the competitive service.”
Similar in its simplicity, Section 7302 says the president “may prescribe regulations for the conduct of employees in the executive branch.”
None of the sections permit the president to issue the federal worker vaccine mandate, the court said.
Other courts have already held that Section 3301 is not broad enough to authorize a vaccine mandate, the court said. Not even a “generous reading” of Section 3302 provides such authorization, it added.
And as to Section 7301, it said, the authority for the mandate is lacking because the executive order went far beyond regulating only workplace conduct.
Bottom line, according to the court: The president lacked the statutory authority to issue the mandate.
Injunction Granted
A preliminary injunction blocking the mandate was warranted, the court said, as was nationwide applicability.
At first blush, the ruling might seem like a sky-is-falling moment, with broad public health implications, for supporters of the mandate. But a slightly closer look reveals some substantial limitations of the court’s decision.
First, in the big picture that is the COVID-19 pandemic, the number of people directly affected by the decision is relatively miniscule.
In the U.S., the virus has infected about 72 million people and killed around 870,000. In addition, the U.S. workforce is at about 162 million.
By contrast, there are about 2.1 million federal workers, according to a 2021 report from the Congressional Research Service.
Small Percentage
So even when the mandate was first announced, it applied to only a very small percentage of the U.S. workforce.
Even more important, the percentage of the overall population affected by the ruling is smaller than even that 2.1 million – by a lot.
That’s because as of December, nearly 93% of the federal workforce had received at least one dose of the vaccine – and about another 5.5% had requested an exemption.
That means that at the time the Texas court issued its decision, the overwhelming majority of federal employees subject to the mandate were already in compliance.
That’s not to say that the number of federal workers who don’t want the vaccine and directly benefited from the decision don’t count – surely, they do. For them, the ruling has a very real and direct impact.
But in the big picture, they represent only a tiny fraction of the American workforce.
A second important limitation of this decision: It issued only preliminary as opposed to permanent relief.
That means the case is far from over. It’s not a final decision, and technically is not even a decision on the merits of the case. Instead, it is a finding that the plaintiffs are likely to succeed on the merits.
So while it is a setback for the administration, it does not carry the weight of a final decision or even a decision on the merits.
The Justice Department has already indicated that it will file an appeal.
Other Rulings
Finally, and as this decision noted, there is contrary precedent. As the court acknowledged, most other challenges to this mandate have fallen short.
Was the court’s decision to block the mandate significant? Certainly. It curtailed the power of the president to impose his desired mandate, and that’s no small matter.
But did it give the final word on the question or affect a significant portion of the national workforce? Not nearly.
And in the aftermath of the wealth of legal decisions that vaccine requirements are sure to generate, it is likely to fit more properly as a footnote than a watershed moment.
