On Friday afternoon, U.S. District Court Judge Jeffrey Vincent Brown blocked President Joe Biden’s COVID-19 vaccine mandate for the federal workforce and issued a nationwide injunction ensuring no other district court could revive the policy. At least a dozen other courts have already declined to halt this policy, but Brown decided that they were wrong. His decision rests on several egregious misreadings of the law. Most notably, Brown—a Donald Trump nominee and Federalist Society stalwart—rewrote a major statute to vastly diminish the president’s power over federal employees. In doing so, he has imperiled a broad swath of civil service regulations that have nothing to do with vaccines, including the longstanding ban on drug use outside of the office.
Presidents have sweeping authority over federal workers under both the Constitution and federal law. Biden drew upon both sources to issue his mandate (which includes medical and religious exemptions). Of all the White House’s vaccine policies, this one is on the strongest legal footing, because it does not implicate the Supreme Court’s concerns about federalism or the separation of powers. Until now, it appeared that across the ideological spectrum, judges agreed that the chief executive has wide latitude to regulate his own workforce. That’s one reason why federal courts in Arizona, the District of Columbia, Florida, Maryland, New Jersey, Oklahoma, Texas, and Washington refused to freeze the mandate.
Congress acknowledged and formally bestowed these powers in a 1966 statute called Section 7301. It states: “The President may prescribe regulations for the conduct of employees in the executive branch.” Ever since, presidents have relied on this law to alter and update employment conditions for the civil service.
Most famously, Section 7301 provides the legal basis for the prohibition on illegal drug use among federal employees, as well as drug testing programs to enforce the rule. But presidents have used the law to implement plenty of other policies, including a ban on federal employees accepting gifts from lobbyists; a ban on tobacco use in federal workplaces; a detailed “revolving door” ban limiting federal employees’ ability to become lobbyists after their service; an expansive ethics code barring federal employees from various conflicts of interest on and off the job; a requirement that federal workplaces accommodate nursing mothers; and so much more.
It was no surprise, then, that Biden relied on Section 7301 in issuing his vaccine mandate for the civil service. But Brown has a radically different interpretation of the statute. He declared that the president may only regulate “workplace conduct” under the law—and getting vaccinated does not qualify. Brown elaborated: “Any broader reading would allow the president to prescribe, or proscribe, certain private behaviors by civilian federal workers outside the context of their employment” he wrote. “Neither the plain language of Section 7301 nor any traditional notion of personal liberty would tolerate such a sweeping grant of power.”
What? Had Brown simply Googled this statute, he would have immediately learned, in fact, this “sweeping grant of power” is exactly what the law provides. Consider the sampling of Section 7301 regulations listed above. Many of them restrict federal employees’ conduct outside the workplace. The gift ban applies on and off the job. So do all the ethics rules. And so, most obviously, does the prohibition on illegal drug use, which is not suspended when a worker clocks out. To the contrary: Federal employers must test their workers for drugs to ensure that they are not using them outside work hours.
By Brown’s logic, all of these requirements are illegal. The chief executive may not lawfully bar his workforce from injecting heroin at home. After all, doing drugs in your own bedroom is certainly not “workplace conduct.” Some lobbying restrictions, too, are illegal if Brown is correct. Current regulations, for instance, forbid former members of the civil service from lobbying certain officials for “the remainder of the administration,” meaning the ban may apply for years after they leave the government. Another directive bars ex-government workers from lobbying their former agency for five years. Any policy that limits a former employees’ conduct does not, by definition, apply in the “workplace.”
How, exactly, did Brown justify this extra-textual limit on Section 7301? By badly misinterpreting the Supreme Court’s recent decision blocking the vaccinate-or-test mandate for large employers. In that case, SCOTUS held that the Occupational Safety and Health Administration could not regulate hazards outside the workplace. It did so because the mandate constituted an extraordinary “exercise of federal power” with “vast economic and political significance.” According to the court, the Constitution permits only Congress to issue such policies, not an agency like OSHA. And Congress had not passed any vaccine mandates. To respect the separation of powers and state sovereignty, then, the court interpreted federal law narrowly.
To reach his desired conclusion, Brown created a fantasy version of the Supreme Court’s decision. He asserted that the court “specifically held that COVID-19 is not a workplace risk” in all contexts. That’s just not true. The court said COVID-19 is not a workplace risk within the meaning of the Occupational Safety and Health Act. And it did so in light of constitutional concerns that a broader reading would violate constitutional boundaries between Congress and president.
Section 7301 is, of course, an entirely different law, one whose text does not limit its scope to the workplace in any way. But more importantly, any constitutional concerns here run in the opposite direction. Article II gives the president immense authority over the executive workforce; as James Madison explained, “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” The Supreme Court has repeatedly confirmed this power. Section 7301 should thus be read broadly to avoid unconstitutional restrictions on the president’s Article II authority. At a bare minimum, it must be interpreted to let the president impose a vaccination requirement for the executive workforce during the nation’s deadliest pandemic.
This butchering of constitutional law, statutory text, and basic logic is so egregious that SCOTUS may well reverse Brown in due course. The civil service mandate has an even stronger legal basis than the health care mandate, which the Supreme Court upheld. It is so clearly lawful that the anti-vax plaintiffs had to shop their case to a dozen courts before they could score a victory. In Brown, they found a judge shameless enough to invent a nonexistent rule against a vaccine mandate as COVID-19 cases soar across the country.