WASHINGTON, DC – Following oral argument this morning in the U.S. Court of Appeals for the Fifth Circuit in Feds for Medical Freedom v. Biden, a case presenting a challenge to President Biden’s COVID-19 federal employee vaccine policy, Constitutional Accountability Center Appellate Counsel Smita Ghosh issued the following reaction:

At oral argument in the Fifth Circuit this morning, the attorney representing the group of federal employees challenging President Biden’s vaccination policy for federal employees pressed the argument that federal statutes do not give the president the power to require vaccination, even with provisions for religious, medical, and ethical exemptions.  That argument, if accepted, would strike a severe blow to the federal government’s ability to respond effectively to public health crises and manage its internal affairs.

After all, contrary to the challengers’ claim at argument this morning that “there is no historical analogue” for the federal employee vaccine policy, there is in fact a long history of the executive branch regulating executive branch employees, including in cases involving disease prevention.  As Justice Alito once observed, the President has “wide latitude” when managing the federal workforce.  And as CAC discussed in its amicus brief in the case, officials of the Army and Navy made smallpox vaccines mandatory in the years following the war of 1812, and federal prisons issued a similar requirement in the 1880s.

Indeed, as our brief also demonstrates, Congress used broad language when it gave the president the power to issue workplace regulations and policies, recognizing the “flexibility” needed to regulate federal employees.  If the Fifth Circuit is guided by text and history, it should recognize the legality of the workplace vaccination policy and let the president—rather than the courts—make the final call when it comes to the health and safety of the federal workplace.

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Resources:  

CAC case page in Feds for Medical Freedom v. Biden: https://www.theusconstitution.org/litigation/feds-for-medical-freedom-v-biden/

Smita Ghosh, Text and History Support the Vaccination Requirement for Federal Employees, Apr. 12, 2022: https://www.theusconstitution.org/blog/text-and-history-support-the-vaccination-requirement-for-federal-employees/

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Constitutional Accountability Center is a think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.  

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