President Biden's administration is still pursuing litigation to implement a federal worker vaccine mandate despite recently changed Centers for Disease Control Prevention (CDC) guidelines for both vaccinated and unvaccinated people.
The case, called Feds for Medical Freedom v. Biden, is set for a hearing before the entire Fifth Circuit Court of Appeals on Sept. 13. It stems from a case filed in Texas last December that resulted in a federal trial court issuing a nationwide injunction against the federal government enforcing its vaccine mandate for civilian employees.
A panel at the appeals court then ruled for the Biden administration, overturning the trial court. But the Feds for Medical Freedom workers group asked the entire 17-judge appeals court to weigh in. The court agreed, putting its previous ruling on hold and preventing the mandate from being enforced until a final ruling is issued. Now the Biden administration is set to go to court to try to enforce that mandate next month.
But the CDC recently changed its coronavirus guidelines, making recommendations on quarantine and prevention effectively equal between vaccinated and unvaccinated people.
"CDC’s COVID-19 prevention recommendations no longer differentiate based on a person’s vaccination status because breakthrough infections occur, though they are generally mild, and persons who have had COVID-19 but are not vaccinated have some degree of protection against severe illness from their previous infection," the latest updated guidelines say.
The guidelines also say that "quarantine of exposed persons is no longer recommended, regardless of vaccination status." This recommendation, according to the CDC, is meant to help "limit the social and economic impacts" of the virus mitigation measures.
Manhattan Institute senior fellow for constitutional studies Ilya Shaprio told Fox News Digital that those changes in the CDC guidelines will complicate the Biden administration's efforts to enforce the federal employee vaccine mandate.
"I imagine the government is taking a hard look at its litigation posture and any other remaining vaccine mandate cases," he said. "I think the court in this case and in others will have a jaundiced eye towards government representations that a mandate is as required now as it was six or 12 months ago."
Shapiro added: "It goes to the standard of arbitrary and capricious under administrative procedure… If there's really no reason to require this if the CDC itself… is saying that there's no benefit if there's no difference between vaccinated and unvaccinated, then why is he doing this?"
Feds for Medical Freedom president Marcus Thornton added that: "With the CDC drawing little distinction between vaccinated and unvaccinated populations, it is clear that ‘The Science’ does not support forced vaccinations. The administration should therefore rescind its unscientific and unconstitutional executive order mandating COVID vaccinations for all federal employees and contractors.
"Furthermore, it should apologize to the men and women who have been subjected to harassment and abuse, withdraw any and all COVID vaccination requirements, reverse any disciplinary actions taken in regards to vaccination status, and commit itself to upholding individual liberty and medical autonomy," Thornton added.
The Justice Department declined to comment when asked if the change in CDC guidelines will affect its litigation. It also did not answer a question asking if there's reason to continue pursuing the mandate now that there's parity between vaccinated and unvaccinated people in the government's guidelines.
The White House did not respond to a request for comment asking the same questions.
In a brief arguing to the Fifth Circuit last month that the vaccine mandate should be allowed to move forward, one of the chief reasons the government gives for the mandate is preserving workers' efficiency.
Just as President Reagan concluded that federal employees’ off-duty use of illegal drugs could negatively affect their workplaces, Executive Order 14043 reflects a determination that contracting and spreading a contagious virus undermines workplace efficiency.
That issue may be addressed by the new parity for unvaccinated people in the CDC guidelines, aimed at limiting "economic impacts" of virus mitigation measures.
The Biden administration also presents several other arguments in its brief, both on why it has the authority to implement the mandate and on the need to do it now.
It argued that employees may seek exemptions from the mandate – although such exemptions are very rarely handed out. And the government said vaccination status is not a class, but rather a behavior. This is similar, the government said, to how illegal drug users are not a protected class.
"Just as President Reagan concluded that federal employees’ off-duty use of illegal drugs could negatively affect their workplaces, Executive Order 14043 reflects a determination that contracting and spreading a contagious virus undermines workplace efficiency," the government brief says. "The district court’s rationale would call into question requirements like drug testing of federal employees."
Feds for Medical Freedom and its allies, meanwhile, argue that Biden simply does not have the authority to force the entire civilian federal workforce to take a COVID-19 vaccine. And they say being vaccinated against COVID-19 is fundamentally different from other behaviors, and constitutes a status.
"The core question before the court is simple: do any of the statutes cited as the basis of Executive Order 14,043 grant the President—or any of his subordinates—authority to compel federal employees to take a vaccine? The answer is no," the America First Legal Foundation said in an amicus brief.
"Executive orders issued by Republican and Democratic presidents exemplify the actual scope of section 7301," America First Legal added. "In 1969, President Nixon allowed many federal employees to participate in labor organizations… In 1997, President Clinton prohibited smoking in the federal workplace… Both executive orders regulated the federal employees’ ongoing workplace conduct. Neither had anything to do with off-the-job conduct, much less with off-the-job medical choices."
America First Legal added: "In contrast, President Biden has commanded federal employees to have ‘fully vaccinated’ status. And as a status-based regulation, the President’s order neither requires, allows, nor proscribes any type of ongoing behavior. Nor does it cover the behavior of all employees. President Biden’s executive order does not regulate the conduct of federal employees who were ‘fully vaccinated’ prior to September 9 at all."