On Wednesday night, the 5th U.S. Circuit Court of Appeals upheld one of the most egregious abuses of the federal judiciary in memory. By a 2–1 vote, the court refused to halt a Trump judge’s nationwide injunction barring President Joe Biden from requiring his own workforce to get vaccinated against COVID-19. The majority rewarded anti-vaxxers for gaming the system by asking 12 different federal judges for an injunction before finding one lawless enough to grant one.
The 5th Circuit was already the most radical appeals court in the country. Now it is complicit in anti-vaxxers’ corrupt quest to transfer a core executive power from the president to a single unelected judge.
It’s important to understand at the outset that this case, Feds for Medical Freedom v. Biden, is fundamentally different from other vaccine-related lawsuits. Previous cases tested the limits of the executive branch’s authority to compel private companies—including federal contractors and recipients of government funding—to impose a vaccine mandate (or a vaccinate-or-test policy) on their workers. Feds for Medical Freedom involves a very different workforce: the executive branch of the United States government. The president, of course, is the head of the executive branch, and according to the Supreme Court, he holds all executive power. Although the chief executive often delegates oversight of his roughly 2.1 million employees, he is, as a constitutional matter, their boss. Congress has acknowledged this fact in a sweeping law that allows the president to “prescribe regulations for the conduct of employees in the executive branch.” And the Supreme Court has recognized that, under both this statute and his inherent constitutional authority, the president bears responsibility for “the efficient operation of the executive branch.”
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Presidents have exercised this power in too many ways to count. For instance, it forms the basis of the government’s drug testing program for federal employees. And it authorizes a labyrinth of ethics rules that strictly limit current and former employees of the executive branch from lobbying the government. Biden relied on this power in mandating vaccines for his own employees on Sept. 14, 2021. “Ensuring the health and safety of the federal workforce and the efficiency of the civil service,” he explained, requires “all available steps” to avoid the spread of COVID-19. And the Centers for Disease Control and Prevention “has found that the best way to do so is to be vaccinated.”
Anti-vaxxers across the country promptly pummeled federal courts with requests for an injunction to halt this order. There were several profound flaws in their arguments, beyond the obvious fact that the chief executive—not an unelected judge—calls the shots for executive branch employees. Most notably, a thicket of statutes and precedents forbid these workers from filing lawsuits before going through lengthy administrative procedures—a process these plaintiffs sought to skip over. One by one, these lawsuits failed; in total, 12 different district court judges across the ideological spectrum shot them down. The plaintiffs lost in Arizona, Colorado, Oklahoma, Maryland, Texas, Washington state, Florida (before two different judges), and the District of Columbia (before three different judges). By any standard, the litigation was a total wipeout, a refutation of every argument put forth against Biden. The matter seemed settled.
Then came U.S. District Judge Jeffrey Vincent Brown. A Donald Trump nominee, Brown is a Federalist Society stalwart who gained notoriety for attempting to overturn marriage equality in Texas from his perch as a state court judge. When an anti-vax group called Feds for Medical Freedom asked Brown for an injunction, he looked at the hundreds of pages of reasoning produced by 12 of his colleagues and thought: I know better. On Jan. 21, in a threadbare 20-page decision, the judge declared Biden’s mandate unconstitutional and issued a nationwide injunction barring its enforcement. He provided one sentence of justification for freezing the policy in every state, including those where judges had upheld it: A narrower injunction, he asserted, would “prove unwieldy and would only cause more confusion.”
Brown’s decision was not just laughably wrong, radical, and arrogant; it was, itself, unconstitutional—a staggering violation of the separation of powers. Never before in U.S. history has a single federal judge attempted to seize the president’s authority over his own employees to such a brazen and extreme degree. The Justice Department swiftly appealed to the 5th Circuit, pointing out that Brown had “essentially nullified a dozen other district court decisions.”
On Wednesday, however, a split panel of judges refused to overturn Brown’s injunction without bothering to explain its reasoning. The two judges in the majority were Jerry Smith, a Ronald Reagan nominee, and Don Willett, a Trump nominee. Judge Stephen A. Higginson, a moderate Barack Obama nominee, penned a dissent that reflected a kind of stunned outrage. “The public interest is not served,” Higginson wrote, “by a single Article III district judge, lacking public health expertise and made unaccountable through life tenure, telling the President of the United States, in his capacity as CEO of the federal workforce, that he cannot take the same lifesaving workplace safety measures as these private sector CEOs.”
Smith’s vote against the Biden administration is no surprise: In January, he infamously compelled an attorney to remove his mask during arguments, even though the attorney had pleaded to conduct the argument remotely because omicron was surging and his young children could not yet be vaccinated. But Willett should know better. He has, in the past, displayed real principle and independence, suggesting that he is not just another of Trump’s robed hacks. Such backbone was missing on Wednesday. Willett did not even have the decency to explain his position.
Under Trump, progressive litigants sometimes filed lawsuits in a handful of courts seeking nationwide injunctions. In 2020, Justice Neil Gorsuch expressed his dismay that plaintiffs had challenged an immigration restriction in a whopping five different courts. (How naïve we were back then.) He declared that nationwide injunctions were a (likely illegal) abuse of the judicial system, “sowing chaos” and encouraging “gamesmanship.” Justice Clarence Thomas agreed. Yet over the last year, conservative judges have been flinging out nationwide injunctions against the Biden administration—and these two justices mysteriously have gone silent.
If there were ever a time for the Supreme Court to rein in this exploitation of judicial power, it is now. Brown’s nullification of 12 previous court orders is not an act of judging and hardly pretends to be. It is, instead, an aggressive attempt by one rogue judge to steal a fundamental executive power. If the Supreme Court lets Brown and the 5th Circuit get away with this theft, it will embolden countless other Trump judges to shift control over the executive branch to the Republican-dominated judiciary. This case is not just about vaccines. It is about who governs this country: a democratically elected president or an unelected, life-tenured juristocrat.
