A Texas federal judge has today granted a preliminary injunction staying an executive order requiring all federal employees to be vaccinated. Here is the decision. Fed Contractor Mandate blocked!

The Texas district court, in large part, based its decision on the recent Supreme Court decision blocking OSHA’s vaccine or testing and mask mandate. The court seemed to think that the President needed congressional approval to make such a broad mandate. To me, the case signifies how the federal judiciary is trying the roll back the “administrative state” which is a common refrain in Republican circles these days.

There is no doubt in my mind that the Fifth Circuit will refuse to grant a stay of the preliminary injunction. That means that the Feds will have to get on the Supreme’s shadow docket. It is an important case affecting all federal employees, so the Supremes court might well want to decide whether to stay the district court’s decision. The three liberal justices will surely vote to hear the case. I suspect that the three conservative justices will go the other way. Four justices can decide to hear a case. So the liberals only need one more. Practically speaking, if the Supreme’s don’t accept the case, then the (assumed) Fifth Circuit’s refusal to stay the decision means that the injunction continues in effect, and the mandate does not become effective, indefinitely.

One way or the other, in the shadow docket, or on an appeal, odds are the Supreme’s will overturn the mandate.
That means I think the Supreme’s 5-4 decision to stay the preliminary injunction barring enforcement of the Medicare and Medicaid injunction (meaning that the vaccine mandate on health care workers goes into effect) is a one-off. I think that the federal administrative agencies and executive order mandates will be rejected by the Supremes.

I will say that as the head of the federal government, I would have thought that the President had the authority to issue a vaccine mandate for federal employees. But, we live in strange times, and most of the Supremes are none too happy with this administration and its policies. And, I think the judiciary is starting to suffer from the same covid fatigue as the rest of us. Indeed, once we are past the peak of the Omnicron variant, I think there will be rapid deceleration of support for federal mandates of any kind.

Rick Jaffe, Esq.