In 2021, President Biden issued Executive Order 14043, which requires federal employees to be vaccinated against COVID-19, subject to medical and religious exemptions. A group of federal employees subsequently filed suit, arguing that Congress had not clearly authorized Biden to issue the Executive Order.

In January 2022, the District Court for the Southern District of Texas barred implementation of the Order, concluding that the statutes giving the president authority over the “conduct of employees in the executive branch” only allow the president to regulate workplace conduct. On appeal, a Fifth Circuit panel reversed the district court’s injunction, but did not rule on the legality of the Order, concluding instead that the courts lacked jurisdiction to hear the case. In June 2022, the full Fifth Circuit agreed to rehear the case en banc.

On August 3, 2022, CAC filed an amicus curiae brief in support of the government. Our brief made three main points.

First, our brief discussed the long history of executive regulation of executive branch employees, including in cases involving disease prevention. During the American Revolution, for example, George Washington ordered the whole Continental Army to be inoculated against smallpox. This practice continued after the ratification of the Constitution, when officials of the Army and Navy made smallpox vaccines mandatory in the years following the war of 1812.

Second, our brief explained that Congress codified the president’s broad authority to regulate federal employees in the statutes that President Biden cited as authorization for his order. Against the backdrop of a long history of regulation of the federal workforce, Congress in 1871 passed a series of civil service provisions that expressly authorized the president to regulate the “conduct” of federal employees. Congress broadened and recodified these provisions in 1966, and nothing in the text of these provisions suggests that the president’s authority is limited to regulating conduct at the workplace. Indeed, presidents have repeatedly used their power under these statutes to make regulations concerning the conduct of federal employees, both inside and outside the workplace.

Finally, our brief argued that Supreme Court precedent supports the president’s broad authority to regulate federal employees, including their out-of-office conduct, when such regulation is justified by the government’s interest in the safety, effectiveness, and security of government facilities. In one case, for example, the Supreme Court sanctioned Reagan Administration regulations requiring drug testing of government employees and prohibiting drug use outside of the workplace.

In short, presidential history, statutory text, and the Supreme Court’s precedents all confirm that the president has broad authority to regulate federal employees, especially in cases where workplace safety is in jeopardy.

On March 23, 2023, the en banc Fifth Circuit issued its decision, affirming the district court’s preliminary injunction of the mandate.