Biden Admin Seeks Quick Reversal of Order Blocking Vax Mandate

Government lawyers trigger process to produce quick decision on mandate’s legality

Kevin Daley • November 9, 2021 5:45 pm

The Biden administration is moving to quickly overturn an emergency court order blocking its employer vaccine mandate.

Although a circuit court paused the mandate on Saturday, the Biden administration has activated a fast-track legal process designed to produce a quick decision on the legality of the mandate. Government lawyers are confident the mandate will survive because it’s backed by expert agency guidance and offers opt-outs in certain cases.

The vaccine mandate could prove a political liability for President Joe Biden. COVID-19 fatigue appeared to play a role in Democratic losses in last week’s elections. And small business owners warn that compliance costs will prove too taxing in the midst of inflation and staffing shortages.

The Fifth U.S. Circuit Court of Appeals paused the mandate Saturday morning, citing “grave statutory and constitutional issues.” A dozen challenges to the mandate are pending in courts across the country from plaintiffs including the Republican National Committee, a Baptist theological seminary, and a coalition of red states.

Federal law provides that those challenges can be consolidated in a single court. The Multicircuit Petition Statute directs that a special judicial panel may consolidate all challenges to a particular federal action in a single federal appeals court “by means of random selection.”

The Biden administration started that process when it notified the special judicial panel on Monday, and the reassignment lottery will take place on or about Nov. 16. Once the cases are transferred and consolidated, the new court of appeals can rescind the Fifth Circuit’s stay and clear the way for its implementation on Jan. 4, 2022, the effective date of the vaccine rule.

“The Fifth Circuit’s temporary stay gave challengers a public-relations boost, but it’s unlikely to be the last word,” said Sean Marotta, a partner at the law firm Hogan Lovells with knowledge of the Multicircuit Petition Statute. “The Department of Justice has already made clear it will ask the circuit selected in the lottery to lift the Fifth Circuit’s stay, and the Supreme Court through its emergency ‘shadow docket’ will get the final say.”

The venue could make a difference to the mandate’s fate. The appeals courts differ in ideological orientation. Differing case law among the appeals courts could also make a difference.

Before the Multicircuit Petition Statute, challenges to federal actions were consolidated in the appeals court that received the first lawsuit. As such, lawyers raced to the courthouse moments after new federal policies went into effect in hopes of securing their preferred venue. The Multicircuit Petition Statute is designed to replace that manic competition with a lottery in select cases.

Once the appeals court issues its decision, the losing party can appeal to the Supreme Court. A virtue of the statute is that it allows the courts to reach a quick and final decision as to the legality of the mandate.

The High Court has turned away emergency challenges to state-level vaccine mandates in recent months. Justice Sonia Sotomayor in October unilaterally turned away a challenge to vaccination requirements for New York City public school employees. And Justice Amy Coney Barrett similarly turned down a challenge to Indiana University’s vaccine mandate without referring it to the full Court in August.

An emergency appeal from Maine divided the justices in late October. The case featured a group of health care workers who challenged a vaccination requirement for medical personnel because it did not include a religious exemption. The Court left the mandate in place, but Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented.

The Maine case notwithstanding, even some of the conservative justices have indicated a vaccine mandate with proper opt-outs could survive legal attack.

In a 2020 emergency appeal involving restrictions on worship in New York state, Gorsuch said a century-old Massachusetts law requiring smallpox inoculation would probably survive even the highest level of legal scrutiny. Gorsuch wrote that the burden on citizens was “avoidable and relatively modest” because the law gave citizens the choice between inoculation and a fine.

Biden’s mandate lets some workers choose between vaccination and weekly testing. Medical and religious exemptions are also available, but the scope is contestable and will be a cause of litigation.

The Justice Department is already indicating it will pull no punches in defense of the government’s policy.

“A stay would likely cost dozens or even hundreds of lives per day,” administration lawyers wrote in a Monday legal filing. “Petitioners’ asserted injuries, by contrast, are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds.”