The anti-vax tribalism of Republican judges

The Fifth Circuit Court of Appeals, dominated as it is by Republican appointees, just declared that President Biden can’t require his own employees to be vaccinated against COVID-19. This strange ruling is the latest manifestation of two dangerous trends. The Republican Party continues its descent into anti-vaccine recklessness, and its judges continue to ignore settled law when it conflicts with party loyalties.

The relevant federal statute states: “The President may prescribe regulations for the conduct of employees in the executive branch.” On that basis, presidents for decades have imposed a broad range of regulations for federal employees, including drug testing and rules of ethics. 

In January 2022, a Trump-appointed federal district judge in Texas, Jeffrey Vincent Brown, issued a nationwide injunction blocking the mandate for the entire workforce of the executive branch. That was reversed by a panel of the Fifth Circuit, which held that the employees challenging the requirement needed to exhaust their administrative remedies before going to court. And now all the judges of the circuit have voted to reverse that, reinstating Brown’s injunction.

There’s not much argument in the new Fifth Circuit decision, which simply declares that “we need not repeat the district court’s reasoning, with which we substantially agree.”  So, let’s look at that reasoning.

The pertinent federal statute provides that the president “may prescribe regulations for the conduct of employees in the executive branch.” Getting vaccinated is obviously conduct. But Judge Brown creatively declares that it is not workplace conduct. He relies on the Supreme Court’s then-recent decision in NFIB v. OSHA that COVID is not a workplace risk, and that the Occupational Safety and Health Administration (OSHA) therefore could not protect workers from it. That decision was poorly reasoned, but it had limited reach: The agency’s regulatory authority was constrained on account of separation of powers and federalism. Now we are told that it weakens the president’s control of his own workers: What they do offsite is none of the government’s business.

The implications are dramatic. Can agency staffers accept gifts from the businesses they regulate? Can the Post Office discipline drivers who arrive at work drunk? (It is fortunate that the Fifth Circuit panel vaguely declares that it “substantially agrees” with Brown rather than clearly endorsing his opinion, which would then become binding federal law in Louisiana, Texas and Mississippi.)

Judge Brown also cites “the liberty of individuals to make intensely personal decisions according to their own convictions.” Here he seems to be saying that there is some constitutional right not to be vaccinated — a notion that the Supreme Court rejected in 1905. He darkly refers to “an unwanted medical procedure that cannot be undone.” (Here he echoes Supreme Court Justice Neil Gorsuch’s complaint, in the OSHA case, that vaccination “cannot be undone at the end of the workday.”)

Why would anyone want to undo it — to be vulnerable to a disease that has killed over 1 million Americans? The claim makes sense only if one has some reason to distrust the vaccines that, remarkably, brought the pandemic under control within a year. There are of course those who claim that the vaccines are harmful and ineffective, but they are wrong.

Brown doesn’t deny the interest in protecting the public against COVID, but he says that this “must be balanced against the harm sure to come by terminating unvaccinated workers who provide vital services to the nation.” But whether those workers are needed (and how many of them will persist in refusing when it’s clear that their jobs are at stake) is precisely what their boss is supposed to decide.

Until recently, the anti-vaccine movement lurked at the fringe extremes of the left and right.  Even Donald Trump had to walk back his support for it once he was president. Then, apparently because he thought it would help him get reelected, he decided to minimize COVID, attack measures to control its spread, keep mum about the dangers (which we now know he understood perfectly well) and discourage mask-wearing. That made COVID a partisan issue, which persists even after he has left office: Call it “Long Trump Syndrome.” 

Now judges who a few years ago had no views about vaccines suddenly regard them with deep suspicion. They also would probably have a very different view of executive power if a Republican were president. Judges sometimes, inevitably, interpret the law in light of their broader philosophical commitments, and that is one reason why they sometimes disagree with one another. This decision is not an instance of that. This isn’t law. It isn’t even political ideology. It is pure tribalism.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman.