An Analysis of Feds for Medical Freedom v. Biden: The Implications for the Strength of the Unitary Executive

This past March, the United States Court of Appeals for the Fifth Circuit blocked President Biden’s vaccine mandate for federal employees, upholding an injunction entered by a lower court against the Biden Administration in the case Feds for Medical Freedom et al. v. Biden. The decision comes nearly a year and a half after President Biden signed executive orders in September 2021 which mandated that federal employees receive vaccination against COVID-19 or face employment termination. In upholding the injunction, the Fifth Circuit Court ruled that President Biden lacked the jurisdiction to enact a vaccine mandate for all federal employees. As the Court explained in its majority ruling, the Chief Executive did not have sole authority over “private, irreversible medical decisions made in consultation with private medical professionals outside the federal workplace,” despite the government’s claims. By its nature, this jurisdictional argument over certain federal employment matters reopens the broader debate over the power of the President to make personnel changes within the executive branch of government. However, while the ruling came as a setback for the Biden Administration’s policies, the ruling is not necessarily a permanent defeat for robust executive authority more broadly speaking.

The Biden Administration argued that the courts did not have jurisdiction over the case as a result of the Civil Service Reform Act of 1978 (CSRA), which provides federal employees with mechanisms for remedies under covered actions, such as appointments or promotions made as a result of discrimination or nepotism. The Fifth Circuit Court ruled that the mechanisms under the CSRA are exclusively for covered actions, meaning that the Court’s jurisdiction can apply for uncovered actions, such as demotions or firings, effectively establishing their jurisdiction over the case.

However, certain legal scholars and even Supreme Court justices posit that the President, as the Chief Executive of the United States, is vested with full power to make all management decisions in terms of controlling executive agencies and employees, a key tenet of the unitary executive theory. The unitary executive theory is a theory of constitutional law arguing that the President holds full and generally unrestricted control of the executive branch. As part of his dissent in the Supreme Court case Morrison v. Olson, Justice Antonin Scalia cited Article II of the United States Constitution: “The executive Power shall be vested in a President of the United States.” He then added, “this does not mean some of the executive power, but all of the executive power.” Historically, the United States judiciary has fluctuated in terms of its support for a strongly unitary executive, specifically in regards to the ability of the President to make personnel changes within the executive branch. While some Supreme Court cases, such as Morrison, emphasized certain limits on presidential removal powers, in different cases, especially recently, the courts declared other restrictions unconstitutional.

For example, in the 2020 Supreme Court case Seila Law v. Consumer Financial Protection Bureau, the Court ruled that the conditions required by Congress for the President to remove the director of the Consumer Financial Protection Bureau (CFPB) were unconstitutional and violated the separation of powers, since the head of the Bureau was appointed by the President and the government agency itself exercised enforceable power. As the Court opined, the Director of the CFPB, “in light of our decision, must be removable by the President at will.” In addition, the Court emphasized, although citing a couple of exceptions, that the removal powers of the President are generally illimitable. As the Court majority elaborated, “Article II vests the entire ‘executive Power’ in the President alone ... The President’s executive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President’s authority on his behalf. The President’s removal power has long been confirmed by history and precedent.” In a subsequent Supreme Court case in 2021, Collins v. Yellen, the Court asserted that the provisions in the Recovery Act that added constraints to the President’s ability to remove the Federal Housing Finance Agency (FHFA) Director were unconstitutional. These recent court rulings have nullified restrictions on the Chief Executive’s legal authority to make personnel changes within the executive branch, thus seemingly endorsing a stronger version of the unitary executive theory through a reinforcement of presidential powers.

Despite recent precedent, the March ruling by the Fifth Circuit Court of Appeals appears to be a reversal of the trend in terms of robust executive authority over employee actions. In addition to the two exceptions available to restrict presidential removal power outlined by the Supreme Court in the Seila Law case, the Fifth Circuit Court of Appeals seems to suggest another one, explaining that “working conditions” designed by the President which violate the U.S. Constitution fall under the jurisdiction of the courts. The Court’s ruling makes it clear that not only does the judicial branch have jurisdiction over certain employment terms implemented by the Executive Branch, but that the areas of jurisdiction possessed by the judicial branch depend on the scope of the relevant congressional act (in this case specifically, the Civil Service Reform Act). As a result, this case seems to pose a significant setback to the advancement of a stronger version of the unitary executive theory in federal court for the following main reason: the case emphasizes another limitation on executive power even in regards to termination decisions by the Chief Executive and holds that the judiciary may review some of those decisions in accordance with the provisions of the CSRA.

This being said, the Fifth Circuit Court of Appeals did not formally rule on the actual merits of the vaccine mandate and whether or not the President has the constitutional authority to implement one. They instead focused on whether or not they had the jurisdiction to hear the case and uphold the preliminary injunction filed in a lower court, preserving the status quo until the case could be heard on its merits back in the lower court. While the Fifth Circuit Court of Appeals’ ruling did in fact decisively establish jurisdiction over the case to uphold the injunction, Judge James Ho implied in his concurring opinion that their decision may have been different had the government challenged the constitutionality of the CSRA itself. As he explained, “In an appropriate case, we should consider whether laws that limit the President’s power to remove Executive Branch employees are consistent with the vesting of executive power exclusively in the President…This is not that case, however. That’s because the Government doesn’t challenge the validity of the CSRA or invoke the President’s Article II removal power in this case.” In other words, the Court only possessed jurisdiction because the Biden Administration unsuccessfully argued that its authority over the matter stemmed from a congressional Act, rather than the powers vested in the President in Article II of the United States Constitution.

More recently, the Biden Administration asked the Supreme Court to dismiss the original case as moot, given that President Biden has since revoked the vaccine mandate for federal employees. Should the Supreme Court dismiss the case, the merits behind the case, such as whether the President has the authority to issue similar mandates in the future, would be unresolved. This means that, should a need arise in the future, the President may still be able to enact similar mandates without any direct legal precedent on the matter. Even if the Supreme Court does not dismiss the case and it successfully returns to the lower court for arguments on the merits of the mandate, the President would have the opportunity to challenge the constitutionality of the CSRA itself and cite Article II to affirm broad removal powers in enforcing a vaccine mandate for federal workers.

Therefore, while the result of the Fifth Circuit Court’s decision appears to undermine presidential removal powers, it does so only temporarily. The case leaves the door open for the Chief Executive to challenge a similar future suit on the basis of their inherent constitutional authority. Such a case would likely much more definitively address the ability of the President to make personnel changes under similar conditions and thus further determine the strength of the unitary executive.

Edited by Susannah Cray and Anna Reis