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Fact check: Biden can't mandate vaccinations for Congress; order covers executive branch only

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The claim: Biden exempted Congress and its staff from his vaccine mandate

Outrage ensued online when President Joe Biden announced a strict set of federal vaccine requirements in a continued effort to stop the spread of COVID-19. But some say the president is picking and choosing who has to abide by the rules.

“Shocker! Biden exempted Congress (staff too) from his vaccination mandate. The federal government doesn't have to abide by the mandates set by the federal government. This is why Americans have disdain for The Swamp,” a Sept. 15 Instagram post reads.

The claim originated on Twitter, where the Sept. 14 tweet received more than 300 likes and 100 retweets. On Instagram, it garnered more than 900 likes in aday.

More: Biden announces sweeping new vaccine rules

The claim is false. Biden’s vaccine requirements were issued in the form of an executive order – directives that apply only to the executive branch. Congress is the legislative branch, and thus, is not subject to the order.

USA TODAY reached out to the Twitter user and the Instagram post’s creator for comment.

Congress exempt from rules due to separation of powers, not Biden

Congress and its staff are not beholden to Biden’s executive orders that will require vaccination for all federal workers. But that’s not because he specifically exempted them.

Executive orders are directives that manage operations of the federal government, according to the American Bar Association. They hold the effect of the law and can’t be overridden by Congress unless it oversteps an already-existing law. Issuing them is a presidential power.

As indicated in the name, executive orders only apply to the executive branch. Biden’s order goes a step further, explicitly defining which workers fall under the mandate.

The order mandates that each agency require COVID-19 vaccination for all its federal employees, only giving exceptions required by law. It further defines “agencies” under the U.S. Code’s Title 5 as an executive department, government corporation or independent agency.

“So, now the important question: Why did Biden's executive order only cover executive branch agency employees?" said Matthew Glassman, a fellow at Georgetown’s Government Affairs Institute. "The answer is that he doesn't have the authority to make such regulations for the legislative branch.”

More: Who is covered by Biden's new vaccine mandates and when do they go into effect? Here's what we know.

The legislative branch is made up of the House of Representatives and the Senate, known together as Congress.

“It's as simple as that,” Glassman said. “POTUS has statutory authority to make regulations for Title 5 executive branch employees, and he has no such authority to do so for legislative branch employees.”

House Speaker Nancy Pelosi, D-Calif., said in April she can’t require members of the House to be vaccinated, as it is a “matter of privacy to know who is or who isn’t,” and that she defers to the Capitol Physician on those matters. But in early August, she indicated the vaccine’s full Food and Drug Administration approval might lead the Capitol Physician to change the rules. USA TODAY didn't find any comments from Senate Majority Leader Chuck Schumer, D-N.Y., on a congressional vaccine mandate.

Our rating: False

Based on our research, we rate FALSE the claim that Biden exempted Congress and its staff from his vaccine mandate. Biden’s vaccine requirements were issued in the form of an executive order – directives that only apply to the executive branch. Congress forms the legislative branch, and thus, can't be subjected to the order.

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This article originally appeared on USA TODAY: Fact check: Biden can't mandate vaccines for Congress

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