Fedweek

Washington DC - March 18 - 2022: A truck, part of 'The People's Convoy' is followed by police as it drives near the National Mall. Friday rush hour traffic in the nation's capital was exacerbated by activity of an anti-vaccine mandate convoy protest that originated in the West Coast, when authorities in response closed a number of highway exits near and in the city. Image: MICHAEL REYNOLDS/EPA-EFE/Shutterstock

The nationwide injunction against the Biden administration’s Coronavirus vaccination mandate for federal employees has now hit the two-month mark with the dispute still pending in the court system.

The federal district judge in Texas who issued the injunction January 21 still has not issued a ruling on the merits of the arguments for and against the mandate — although he signaled his most likely choice by issuing the injunction and then refusing to lift it at the government’s request. That injunction barred most agencies from taking disciplinary actions against employees not in compliance — those who are unvaccinated and don’t have an approved or pending request for an exception—as well as from processing requests for exceptions.

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A three-member panel of the Fifth Circuit federal appeals court afterward rejected the government’s emergency motion to lift the injunction, with the majority of two judges making no comment but a dissenting judge saying he would have granted that request. A different panel of that court later heard oral arguments on a standard request to lift the injunction but that panel has not issued a decision.

In the meantime, the spike in infections due to the omicron variant from late 2021 into early this year has ebbed, and many pandemic-related restrictions have been lifted or eased. That includes loosening policies regarding mask wearing and testing of the unvaccinated in federal buildings, among federal employees, onsite contractors and visitors alike.

Those moves, along with repeated statements from the administration about upcoming broader recalls of teleworkers, have led some employees to speculate that the White House will drop the mandate. However, there has been no sign of that happening; the Justice Department could withdraw its opposition at any time but hasn’t.

One possible reason for the case continuing, potentially all the way to the Supreme Court, is that the legal arguments have grown from a challenge to the authority Biden invoked in ordering the vaccination policy into a broader dispute over the limits of a President’s powers to set federal workplace policies in general.

Also now at stake is a related dispute over to what extent challenges to federal workplace policies must first go through civil service channels before being taken into court. That issue has arisen in other contexts such as the Trump administration’s executive orders on disciplinary and union policies that since have been revoked, but remains under dispute—not just in the Texas court but also in a dozen others considering similar suits against the vaccine mandate. Pushing the case to the highest court would be a way of seeking a final resolution.

Meanwhile, there has been a new rise in infections due to a subvariant of omicron called BA.2, which already is prevalent in some other countries and is beginning to spread in the U.S. The potential for yet another spike from that—or from another to come in the future—would also argue against the administration abandoning the mandate.

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