“The president is acting as an employer competing with other employers,” Scarborough said. “That is a significant limiting principle.”
He also argued that the need for the mandate has only intensified as more employees are transitioning back to working in offices as opposed to their homes.
“Widespread vaccination is really the foundation for all the plans to return to physical workspaces, which are now underway,” he said.
However, attorney Trent McCotter, arguing on behalf of the group of federal workers who brought the legal challenge, said that Biden’s actions lack precedent and are beyond his unilateral authority.
“They’re hanging on the thinnest of reeds,” he said.
“What we really have is a general health regulation. It’s not regulating federal employees as federal employees,” McCotter said at another point.
The three-judge panel — comprised of two jurists appointed by President Bill Clinton and one by George H.W. Bush — did not offer much indication about which way they were leaning, and a substantial portion of the oral arguments was devoted to granular questions about the applicability of the Civil Service Reform Act, the 1978 law that serves as a bedrock of the federal workforce system.
What’s at stake: The president announced in September that the more than 3.5 million federal workers would be required to get vaccinated. Unlike other mandates, federal workers were not given the option to get regularly tested in lieu of vaccination unless they received a qualifying medical or religious exemption.
Those who did not comply with the policy would have faced professional repercussions, including possible termination.
Background: A federal judge in Texas blocked implementation of the Biden administration’s mandate on federal employees in January and a different panel of 5th Circuit judges voted 2-1 last month against allowing it to go into effect while the appeals process plays out.
The case is one of several that has hamstrung the Biden administration’s attempts to implement pandemic policies via executive action. The onslaught of challenges have been brought by business groups, Republican-led states, some unions and individuals averse to the vaccines.
Earlier this year the Supreme Court stymied enforcement of a requirement issued by the Occupational Safety and Health Administration that workers at businesses with more than 100 employees get vaccinated against Covid-19 or undergo weekly testing, a mandate that would have applied to roughly 84 million workers.
The high court’s ruling prompted OSHA to withdraw the emergency standard shortly thereafter, though the Labor Department has said it would explore other ways to regulate Covid-19 in the workplace.
However, the Supreme Court did permit a similar rule applying to health care workers issued by a separate federal agency to move forward.
What’s next: The appellate did not give a timeline for when it would hand down its ruling on the case.