AFL Moves to Enjoin Biden’s Unconstitutional Federal Civilian Employee Vaccine Mandate

WASHINGTON, DC – Last night, America First Legal (AFL) filed for a preliminary injunction in our case representing a long-time federal prosecutor in Wyoming–who has spent her entire career investigating and prosecuting organized crime and drug cases– challenging the Biden Administration’s unlawful vaccine mandate for federal employees. The motion asks for the court to enjoin enforcement of the vaccine mandate against our client and to stop the semi-weekly COVID testing she must do just to continue serving the American people.

As an organization that has been on the leading edge of vaccine mandate litigation, AFL makes strong and principled, yet straightforward arguments on behalf of its clients. In this motion, AFL argued that the vaccine mandate is unconstitutional as applied to our client on the following grounds: 

• There is No Statutory Authority for the Mandate.
  • None of the statutes cited by E.O. 14,043 authorize a vaccine mandate. 
  • 5 U.S.C. § 3301 is a generic hiring authority but “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”
  • 5 U.S.C. § 3302 governs the competitive service and our client is a member of the excepted service (and the statute is so generic it could not authorize a mandate anyway).
  • 5 U.S.C. § 7301 authorizes regulation of on-the-job conduct, not executive fiats to govern the personal lives of every federal employee.
• The Mandate Violates Our Client’s Constitutional Rights.
  • The vaccine mandate violates our client’s constitutional rights to liberty, privacy, and bodily integrity that cannot be overcome by broad, sweeping executive fiats that show no regard to the constitutional liberty interests at stake.
    • The Mandate Violates the Due Process Clause.
      • In all other forced medication cases–an area of law dominated by cases about forced antipsychotic medication for prisoners, dangerous residents in mental institutions, and criminal defendants awaiting trial–the government, and normally one with a police power that the federal government does not possess, must make specific showings of how the state interests outweigh the individual’s constitutional rights.
    • The Mandate Violates the Fourth Amendment.
      • DOJ’s COVID-19 testing requirements for unvaccinated individuals violates the Fourth Amendment. Because the CDC has admitted that the Omicron variant can be spread by vaccinated individuals, there is no basis on which to differentiate between vaccinated and unvaccinated for purposes of compulsory testing. Therefore, testing only of unvaccinated is without probable cause and violates the Fourth Amendment prohibition against unreasonable searches. 

• The Mandate is Not Sufficiently Tailored to Accommodate Our Client’s Fifth and Fourth Amendment Rights.
  • Regardless of the standard of scrutiny (strict or intermediate) applied, the government’s case must fail because they have not considered any alternatives or given any weight to the constitutional rights at stake.
  • There has been no tailoring, no consideration of alternative options, or less restrictive means. All that exists is a blanket, categorical order to “get the vaccine” regardless of any other factor.
  • Such drastic approaches do not meet constitutional muster under any level of heightened scrutiny.

Under the mandate, the President has decreed by executive fiat that all federal employees must submit to vaccination. But decades of legal precedent do not allow this. If this mandate is allowed to stand, then the Department of Justice will afford greater constitutional protections to the criminals our client prosecutes than they do to our client as an employee. While this may be where the Biden Administration wants to take the United States, it is not permissible under the laws and Constitution.

In addition to this case, in November of last year, AFL filed a lawsuit in the U.S. District Court for the District of Columbia on behalf of another federal employee bringing similar claims. There, we have asked the Court to grant summary judgment to our client. AFL has also litigated, in partnership with the Texas Public Policy Foundation, against the Biden Administration’s unlawful OSHA mandate, which mandated vaccine or testing requirements for private employers with over 100 employees, including before the Fifth Circuit, the Sixth Circuit, and the Supreme Court of the United States. 

Our dedicated group has been at the forefront of challenges to the Biden Administration’s unconstitutional power grabs and clear executive overreach. America First Legal will continue the fight to hold the Biden Administration accountable.

Statement from America First Legal Vice-President and General Counsel Gene Hamilton:  

“President Biden’s insatiable appetite for power threatens the rights of all Americans. Under our system, the federal government is one of limited, enumerated powers outlined in the Constitution. And while the President may have the authority to regulate the workplace conduct of federal employees, as outlined in our brief, those powers do not include the authority for the President to mandate the personal health decisions of every employee in the executive branch. President Biden’s vaccine mandate violates the Constitution, it lacks any congressional authorization, and it must be stopped,” Gene Hamilton said.

Read the brief here.

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