In early May, the Biden administration rescinded its executive order that created a vaccine mandate for federal employees, ahead of a case relating to the mandate reaching the Supreme Court. As The Hill reported, this set the stage for an argument about whether or not federal employees could challenge the constitutionality of the mandate directly in court or if they had to go through the Merit Systems Protection Board.
Two appeals courts reached two different conclusions about the vaccine mandate in
March, with one D.C. appeals court ruling that federal law required the MSPB and another court, the Court of Appeals for the 5th Circuit, ruling in favor of Feds for Medical Freedom and other assorted plaintiffs.A third court, the U.S. Court of Appeals for the 6th Circuit, issued an injunction that stopped the Air Force from making religious exemptions to become inoculated against COVID-19. This prompted Congress to pass a bill that directed Biden’s defense secretary to rescind the executive order. The administration was transparent in all three cases, stating that the judges should issue a Munsingwear vacatur, which sets aside a lower court’s ruling when the ruling is moot.
An attorney for the plaintiffs wrote to the Supreme Court justices, saying, “Petitioners ask this Court to endorse a ‘heads we win, tails you get vacated’ version of Munsingwear, where they can litigate to the hilt in both district and circuit court and—only if they lose—then decline to seek substantive review from this Court and instead moot the case and ask this Court to erase the circuit court loss from the books.”
The Supreme Court chose to wipe the lower court rulings from the judicial record, essentially siding with the Biden administration’s desire to create a clean legal slate for any such actions in the future. Justice Ketanaji Brown Jackson disagreed with the Court in two of the three cases and said that though she doubted the federal government’s entitlement to use the vacatur, she followed the Court’s established precedent.
The Justice Department, however, maintained in its court filings that the motions from the Biden administration were due to changing public health circumstances and not a cynical attempt to win in a court battle, writing, “The President revoked EO 14,043 because of the waning of the pandemic, not any effort to evade judicial review or gain litigation advantage.”