On Thursday, the 5^thU.S. Circuit Court of Appeals upheld a block on President Joe Biden’s vaccine mandate for executive branch employees. The mandate has been on hold since January 2022, when Judge Jeffrey Vincent Brown issued a nationwide injunction freezing it. Brown, a Donald Trump appointee, is one of several far-right Texas judges handing out sweeping injunctions to conservative plaintiffs against the Biden administration; collectively, these judges have halted dozens of executive policies, effectively subjecting the president’s every move to a near-instant judicial veto.

In the Slate Plus bonus segment of this week’s Amicus, Dahlia Lithwick and Mark Joseph Stern talked about the 5^thCircuit’s decision and its implication for Biden’s ability to exercise basic presidential powers. Their conversation has been edited for length and clarity.

Dahlia Lithwick: This week, we’ve got another instance of a nationwide injunction and judge-shopping, this one surrounding President Biden’s vaccine mandate for executive branch employees. Can you walk us through the all-too-familiar pattern here?

Mark Joseph Stern:So, this is a case challenging President Joe Biden’s mandate that all executive branch employees obtain a vaccine against COVID-19. Of course, the Supreme Court has blocked the vaccine mandate that applied to private employers. But this is something different: This is about the president’s own workforce. And you might think, ‘well, the president is the head of the executive branch.’ The Supreme Court has said many times that “all executive power” is vested in him, endorsing the “unitary executive” theory. And so you would expect, perhaps, that the president could make some basic decisions about his workforce, including that they be vaccinated so they are less likely to contract and pass on COVID.

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And yet, when this mandate came down, anti-vax plaintiffs started shopping around in the courts to try to get a nationwide injunction against it. They went to 12different district courts and lost in all 12 of them. Then they went to a thirteenth court to ensure they’d pull a Trump judge, Jeffrey Vincent Brown. Of course, Brown then issued a nationwide injunction blocking the vaccine mandate for the entire executive workforce—not just for the plaintiffs in the case, but everybody under the sun who works for the executive branch.

The case goes up to a panel of the 5^thCircuit, which says the judge got it wrong. Why? There is a federal law, the Civil Service Reform Act, that requires grievances raised by executive branch employees to go through this very complex administrative process. For decades, the rule has been that executive branch employees have to exhaust their administrative remedies before going to court. And even if they get fired in the meantime, their remedy in court is backpay and reinstatement. They do not get to go to a federal court right upfront and demand an injunction, let alone a nationwide injunction.

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But surprise, surprise: The full 5^thCircuit decides to rehear the case. And on Thursday, it ruled that, actually, there is a special, secret exception to the Civil Service Reform Act that says that it doesn’t apply when the president tries to make his employees undergo an “irreversible medical decision.” So the plaintiffs get to skip over all of those administrative procedures and ignore this federal law that governs the rules for everybody else. The court devoted two sentences to the merits of this case, which are essentially: “We substantially agree with the district court’s decision, and we do not need to repeat its analysis here.” That’s how the lawless arsonists on the fightin’ 5^thCircuit operate.

Never underestimate the arsonists, Mark

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So we now have this nationwide injunction upheld by the 5^thCircuit against the president of the United States, barring him from protecting his own workforce against COVID—on the grounds that the 5^thCircuit thinks that this random district court judge got it right and those other twelve, they got it wrong and we don’t need to worry about them.

It’s funny, when you think about the delivery of justice at this moment. It’s like: You put your quarter in the slot machine knowing that you can get exactly the judge you want, the way you might get a Snickers bar from a vending machine. Then you’re going to have the 5th Circuit say “Oh, but it’s Snickers bar! We win.” It’s just amazing, and antithetical to way this is all meant to work.

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• Joe Biden
• Jurisprudence
• Supreme Court
• Vaccines
• Judiciary
• Coronavirus

(责任编辑：行业动态)