5th Circuit Nixes Another Vaccine Mandate

COVID Still Does Not Supersede The Constitution

Once again, the courts have reminded Dementia Joe's regime that the Constitution still is the supreme law of the land.

This latest mandate reversal comes courtesy of the 5th Circuit Court of Appeals. In this latest pushback against White House authoritarianism¹, the 5th Circuit politely told the government that yes, federal employees could sue in federal court.

The crux of the government’s position was that federal employees had to bring cases such as mandate challenges through the administrative review process specified by the Civil Service Reform Act of 1978 (“CSRA”). This was explicitly rejected by the court.

In short, the text and structure of the CSRA creates a decades-old, well-established, bright-line rule: Federal employees must bring challenges to CSRA-covered personnel actions through the CSRA, but they remain free to bring other, non-CSRA challenges under the district courts’ general § 1331 jurisdiction.

Although this ruling merely sustains a preliminary injunction, in the concluding paragraph the court takes a swipe at the mandate by noting the White House intention to end the COVID-19 emergency in May.

We hasten to emphasize that this case only involves a preliminary
injunction. The preliminary injunction’s purpose is to maintain the status quo until the parties have the chance to adjudicate the merits. See Benisek v. Lamone, 138 S. Ct. 1942, 1945 (2018) (“[T]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held . . . .” (quotation omitted)); Texas v. United States, 809 F.3d 134, 187 n.205 (5th Cir. 2015), affirmed by an equally divided
Court, 579 U.S. 547 (2016) (per curiam) (similar). When the parties proceed to the merits in the district court, the plaintiffs will have to prove that whatever injunction they request is broad enough to protect against their proven injuries and no broader. And the Government will have another chance to show that any permanent injunction should be narrower than the preliminary one. And both sides will have to grapple with the White House’s
announcement that the COVID emergency will finally end on May 11, 2023. See Exec. Off. of the President, Statement of Administration Policy Re: H.R. 382 & H.J. Res. 7 (Jan. 30, 2023).

The end result is another mandate failed to survive scrutiny by the courts. The long arm of the federal government still does not end in a hypodermic syringe.

1. Feds for Medical Freedom v. Biden, No. 22-40043 (5th Cir. 2023)