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Jeff Cercone
By Jeff Cercone January 25, 2022

Biden didn’t ‘exempt’ Congress from vaccine mandate. He simply lacks authority to include them.

If Your Time is short

  • President Biden’s executive order mandating COVID-19 vaccines for federal workers applies only to those in the executive branch of government.

  • Congress is in the legislative branch, one of three separate but equal branches.

  • “Another way to think about it is that members of Congress work directly for the people, not for President Biden,” a law expert told PolitiFact.

Since President Joe Biden first issued an executive order in September requiring federal workers to be vaccinated against COVID-19, some have expressed outrage at what they wrongly assumed was an exemption given to elected officials.

"Why are elected officials exempt?" read the caption on a Jan. 22 Facebook post that showed a meme depicting White House Press Secretary Jen Psaki standing in the White House press briefing room. "Does President Biden’s mandate include Congress?" read words on the image. Then, below Psaki, a caption explained the supposed answer: "No, members of Congress are exempt from the vaccine mandate." Underneath, Morgan Freeman looked off to the side in apparent puzzlement: "This sh-- right here is why people know the vaccine mandate is a hoax." 

This post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

Biden instituted his mandate on Sept. 9, 2021, as the delta variant was raging through the U.S. He ordered that healthcare workers, executive branch workers and contractors who do business with the federal government be vaccinated. 

He also ordered private businesses with more than 100 employees to require vaccination or weekly tests for their workers. The U.S. Supreme Court rejected that part of the mandate on Jan. 13, saying that Biden overstepped his authority by targeting private businesses. But the court did allow the mandate on health care workers to continue. The mandate for federal contractors is on hold after being blocked by a federal court in December, and a federal judge in Texas on Jan. 21 blocked Biden’s mandate that federal workers be vaccinated. Neither case has been heard by the Supreme Court.

While the question of whether Biden’s vaccine mandate for federal workers and contractors can be enforced is for the courts to ultimately decide, the question of why members of Congress are exempt is a simple one: Biden doesn’t have the authority to impose a vaccine mandate on them.

Featured Fact-check

"Another way to think about it is that members of Congress work directly for the people, not for President Biden," said David Super, a professor of law and economics at Georgetown Law. "He therefore has no power to give them orders. The same is true of federal judges."

The U.S. government is divided into three separate, but equal branches of power: the executive, the legislative and judicial branches. Congress makes up the legislative branch, which passes the laws that the executive branch must then enforce.

As the name implies, Biden’s executive order only applies to workers in the executive branch of government. It states that "each agency shall implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its federal employees, with exceptions only as required by law." It also defines an agency as an "executive agency" under title 5 of the U.S. code, which reads "for the purpose of this title, "executive agency" means an executive department, a government corporation, and an independent establishment.

Members of Congress and their staff are not subject.

Our ruling

A Facebook post says that Biden gave an exemption to his COVID-19 vaccine mandate to members of Congress.

That is not true. Congress belongs to the legislative branch of government, and therefore was never subject to the president’s executive order, which applies only to the executive branch. Biden did not have the authority to mandate vaccines for members of Congress.

We rate this claim False.

Our Sources

Email interview with David Super, a professor of law and economics at Georgetown Law, Jan. 25, 2022 

‘The White House, "Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees," Sept. 9, 2021

The White House, "The Executive Branch"

The White House, "The Legislative Branch"

United States House of Representatives, "Branches of government"

The Associated Press, "Trump appointee blocks Biden federal worker vaccine mandate," Jan. 21, 2022

The Associated Press, "Supreme Court halts COVID-19 vaccine rule for US businesses," Jan. 13, 2022

Govinfo, "Title 5 - Government organization and employees"

U.S. Supreme Court, "National Federation of Independent Businesses vs. OSHA," Jan. 13, 2022

The National Law Review, "Federal Court Blocks Vaccine Mandate for Government Contractors," Dec. 16, 2021

National Conference of State Legislatures, "Separation of Powers--An Overview," May 1, 2021

USA Today, "Fact check: Biden can't mandate vaccinations for Congress; order covers executive branch only," Sept. 20, 2021

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Biden didn’t ‘exempt’ Congress from vaccine mandate. He simply lacks authority to include them.

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