The Service's positions, answered
The Service's letters and examination reports state fourteen positions in a general vocabulary, and each is answered here from the statute's text, from Tri-State, from the instruments with their exhibit identifiers and from the United States' own representations. None of the fourteen is a reading of the Suspension Clause; each is a gloss the United States has told two federal courts carries no force of law, or a statement of fact about the record that the record contradicts.
1. No orders in effect
There were no government orders related to COVID-19 in effect during the quarter which could have fully or partially suspended your trade or business.
For every quarter, the quarters section lists the orders in force on the quarter's first and last day, by issuer, date and terms, with exhibit identifiers, and the State table and quarter map on this page tabulate them. For the third quarter of 2021 alone the list runs to the federal conveyance order on every campus shuttle and commuter bus, the entry proclamations on every international student, the inbound testing order, the land-border prohibitions, the Healthcare Emergency Temporary Standard on every campus clinic and clinical program, the federal facility and contractor rules, Washington's prohibition on in-person instruction at any campus that did not verify vaccination status, Illinois's vaccination-or-testing order for every higher-education employee and student, Nevada's enrollment condition, Minnesota's and Virginia's vaccination-or-testing orders, Massachusetts's Executive Order 595 on the Commonwealth's executive-department workforce, which addressed higher education by name, the statewide indoor face-covering orders of Louisiana, Oregon, New Mexico, Hawaii and the District and Nevada's county-triggered indoor face-covering directive, which reached sixteen of seventeen counties by August 24, workplace infection-prevention and exposure-control requirements enforced against the operator of every indoor space, the Philadelphia and Denver vaccination mandates, the Dallas, Travis and Boulder County orders, the quarantine and isolation orders of Indiana and Kansas, the prohibitory statutes and executive orders of fifteen States and the litigation each produced inside the quarter, and the instrumentalities' own rules (Ex. FED-020; Ex. FED-207; Ex. FED-208; Ex. FED-042; Ex. FED-232; Ex. FED-080; Ex. FED-272; Ex. WA-071; Ex. WA-081; Ex. WA-079; Ex. IL-042; Ex. NV-055; Ex. NV-041; Ex. MN-044; Ex. VA-045; Ex. MA-068; Ex. LA-036; Ex. OR-048; Ex. NM-068; Ex. HI-023; Ex. HI-024; Ex. DC-057; Ex. MET-PHL-021; Ex. MET-DEN-023; Ex. MET-DFW-030; Ex. MET-AUS-051; Ex. MET-DEN-033; Ex. IN-092; Ex. KS-056; Ex. TX-037; Ex. FL-030; Ex. AZ-043; Ex. UT-045; Ex. MT-072; Ex. SC-040; Ex. AR-081; Ex. IA-057; Ex. SEC-27-001; Ex. SEC-27-011; Ex. IN-094).75 A form sentence that no orders were in effect is not the determination the United States described to the District Court.
An employer can demonstrate eligibility if it can show, under the facts and circumstances, it was partially suspended ... That is done on a case-by-case basis.Doc. 44 at 30 n.7
The National Taxpayer Advocate has recorded that the 2024 letters issued without examination.76 The sentence describes a fall term that did not open. The instruments listed above were published in the Federal Register and the Illinois Register, issued as proclamations of the Governor of Washington and adopted into the Nevada Administrative Code on the dates stated in the quarters section of this page. The position is not a close call on a contested record; it is factually incorrect, and for the third quarter of 2021 it describes a quarter that did not occur.
2. The "essential business" that remained open
The employer operated an essential business and remained open.
The statute does not ask whether an employer was "essential." Where the orders used the word, the designation was the premise of the conditions the orders imposed on the institution, never an exemption from them: the stay-at-home orders permitted educational institutions to operate only "for purposes of facilitating distance learning, performing critical research, or performing essential functions" (Ex. IL-005; Ex. OH-011; Ex. OK-007; Ex. WV-039), which is to say that every other purpose, the lecture, the laboratory section, the residence hall, the dining hall, the game, the commencement, was closed by the same sentence that named the permitted ones; the Florida county orders permitted private colleges to operate "only as needed to facilitate online or distance learning" (Ex. MET-MIA-003); and the University System of Georgia's institutions remained "open, with minimal staff physically on-site" (Ex. SEC-27-007). The Notice's own Q&A-11 excludes only an employer whose order "allows all of the employer's operations to remain open," and its Q&A-17 Example 4 finds an essential hospital partially suspended when an order closed its elective services; no order in the Library allowed all of any campus's operations to remain open.77 An institution that "remained open" to teach by video, feed by take-out and house the students who could not go home was an institution whose in-person instruction, dining rooms, residence halls, stadiums and ceremonies were closed by order. A campus open for some purposes and closed for others was partially suspended; that is what "partially" means, and the Service's own Q&A-15 says so. The "essential" designation was the premise of the conditions the orders imposed, never an exemption from them, and a position that converts it into an exemption rewrites the orders and the statute alike, on the authority of a document the United States has told two federal courts lacks the force of law.
3. Stay-at-home orders directed to the public
Stay-at-home orders directed to the public are not considered; only orders directed at business operations count.
The statute says nothing of the source, addressee or subject of the order; it asks whether the order limited commerce, travel or group meetings, and a stay-at-home order does all three in terms. The Notice's own Q&A-10 lists "[a] State's emergency proclamation that residents must shelter in place for a specified period" as a governmental order, and the United States told the District Court the same thing about orders on business operations.
orders that were otherwise directed at business operations (operational hours, space, etc.) would also be consideredDoc. 44 at 30
For this industry the distinction is empty in any event, because the orders that reached the campuses were directed at them by name: "all public and private universities, colleges, technical schools" (Ex. WA-008); "colleges and universities" (Ex. OR-059; Ex. AL-005); "institutions of higher education" (Ex. VA-006; Ex. NJ-002); "all post-secondary public schools" (Ex. GA-009); "state-supported colleges, universities, and technical colleges" (Ex. SC-002); "[a]ll colleges, universities, and trade schools" (Ex. WY-004); "IHEs" (Ex. WA-071); "Higher Education" (Ex. IL-042); "a university, community college, or state college" (Ex. NV-055); "Public Institutions of Higher Education" (Ex. MET-DFW-030); "public colleges" (Ex. MET-AUS-051); "post-secondary and higher education" (Ex. MET-DEN-023); "in Higher Education" (Ex. MET-PHL-021).78 A reading under which an order addressed to the public is not an order limiting commerce is a reading Congress did not write and the United States has disclaimed, because the only document that carries it "lacks the force of law."
4. Comparable operations through telework
The employer could have continued comparable operations through telework.
"Comparable operations" and "telework" are not in the statute. An order that closed the lecture hall suspended the operation in the lecture hall; "partial" contemplates the remainder continuing; a course taught by video under compulsion is a course the order changed. The Notice's own Q&A-15 and Q&A-16 find partial suspension wherever "laboratories or manufacturing involving special equipment or materials that cannot be accessed or operated remotely" were reached and wherever a workplace was closed "for certain purposes, but not others," and Q&A-16's third factor makes physical work space "so critical" that "this factor alone" defeats comparability where central tasks cannot be performed remotely.79 A welding bay, a nursing skills laboratory, a dental-hygiene operatory, a culinary kitchen, a chemistry laboratory, a residence hall, a dining hall, a stadium and a commencement stage are not operated by video; the Oregon order prohibited "in-person classroom, laboratory, and other instruction" by name (Ex. OR-059); the New Jersey order permitted laboratories, clinical and hands-on instruction to resume first precisely because they "cannot be readily taught other than through in-person instruction" (Ex. NJ-024); and the Utah statute ordering 75 percent of courses back in person is the State's own finding that remote instruction was not comparable (Ex. UT-046). The Service's position would hold that a college whose every building was closed by order was not suspended because its faculty lectured to a screen; that is not the statute, and the United States has told two courts that the document that carries it is not law.
The Notice ... lacks the force of law.Doc. 44 at 19
5. The orders affected customers, not the employer
The orders affected the employer's customers, not the employer (Q&A-13).
A stay-at-home order on the student body, a quarantine order on arriving students and an entry proclamation on international students are orders "limiting commerce, travel, or group meetings" in terms, and the commerce and travel they limited were the institution's. Q&A-13 is a gloss that appears nowhere in the statute, was confined in April 2020 to an employer whose operations were "not required to close its physical locations or otherwise suspend its operations" and to a suspension claimed "for the sole reason" of the customers' order, and was broadened only on March 1, 2021, after every 2020 quarter had closed; the United States has told the Ninth Circuit that "a business may be suspended 'due to' a government order addressing a third party," and Q&A-12 honors third-party orders on suppliers.80 For this industry the point is again empty, because the orders reached the institutions directly and the customers' orders reached them by name: New York's quarantine attached to every student "entering New York from a state" on the list (Ex. NY-006); the District's order let "universities" require affirmation of compliance (Ex. DC-081); Vermont's order defined essential travel to include commuting "to attend PreK-12 school and college" and made every other campus trip non-essential (Ex. VT-080); Nevada's regulation conditioned the customer's enrollment itself (Ex. NV-055). The commerce a college sells is the presence of its students; an order that confined, quarantined or excluded them limited that commerce, and the statute asks nothing more.
6. The measures were voluntary
The employer's measures were voluntary (Q&A-14).
"Voluntary" is not in the statute; "due to" is, and it means but-for causation. Q&A-14 by its own terms reaches only a suspension "not due to a governmental order."81 Nothing this industry did in the six quarters was voluntary in that sense. A college that ceased in-person instruction in March 2020 did so because Washington, Oregon, New Jersey, Virginia, Georgia, Alabama, South Carolina and Wyoming ordered it by name, Louisiana authorized every public postsecondary institution to substitute online instruction and confined the State to home, and every other State confined it to distance learning (Ex. WA-008; Ex. OR-059; Ex. NJ-002; Ex. VA-006; Ex. GA-009; Ex. AL-005; Ex. SC-002; Ex. WY-004; Ex. LA-004; Ex. LA-005; Ex. IL-005). A college that reopened in August 2020 at reduced density with testing, isolation housing and daily reporting did so because the reopening orders made those the conditions of reopening at all (Ex. WA-038; Ex. OR-021; Ex. NY-112; Ex. NJ-024; Ex. MN-029). A college that tested every residential student weekly in the spring of 2021 did so because Utah ordered it (Ex. UT-029). A college that verified the vaccination status of every student in the fall of 2021 did so because Washington prohibited in-person instruction otherwise (Ex. WA-071; Ex. WA-081); a college that tested every unvaccinated employee weekly did so because Illinois, Minnesota or Virginia ordered it (Ex. IL-042; Ex. MN-044; Ex. VA-045); and a college that declined to require a face covering in its own classrooms did so because Utah, Arizona, Texas or Florida forbade it (Ex. UT-045; Ex. AZ-043; Ex. TX-036; Ex. FL-030). Tri-State disposed of the argument that the pandemic, not the order, caused the change: "the required protocols and procedures to comply with the Proclamation" were caused by the order, and on the United States' theory "there are not many businesses or any business that would be eligible under the ERC at all."82 Compulsion in both directions is still compulsion.
The United States and the District Court have defined the employer Q&A-14 excludes as one that chose not to continue when it could have, one "not being ordered to do so."83
could nonetheless, with telework, 'continue operations comparable to its operations prior to the closure' but chooses not toBr. for Appellees at 42
No institution in this industry answered that description in any of the six quarters. The reopening orders permitted a campus to operate only on conditions with the force of law: Washington's "only if they implement, follow, and enforce the requirements specified below," Oregon's "may only take place if they comply with the minimum standards," Utah's weekly testing of every residential student (Ex. WA-038; Ex. OR-021; Ex. UT-029). The standing statutes commanded the same conduct independently, as the standing-duties subsection above sets out: the communicable-disease control acts, of which Texas's states the rule for every person, "Each person shall act responsibly to prevent and control communicable disease" (Ex. DUT-TX-001); the offense provisions that made every emergency order a command under penalty; and the workplace-safety duty of every State and the general duty clause, 29 U.S.C. § 654(a)(1), enforced by citation from September 2020 (Ex. DUT-TX-013; Ex. DUT-FED-001; Ex. LAW-487). The legislatures then fixed the standard of care as compliance with governmental standards, guidance and protocols, in Texas for actions commenced from March 13, 2020 and in Oregon for community college districts (Ex. DUT-TX-015; Ex. DUT-OR-008).84 The safe-workplace statutes had no COVID-19 content until the health authorities said what a safe campus required; the measures were taken because those directives defined the duty and would not have been taken without them. "Due to" is but-for causation, and the causation here runs from the command to the measure without an intervening choice.85 The Notice's own words confirm it: a modification "required by a governmental order as a condition of reopening" is a partial suspension due to the order.86 A statute that commands conduct is an order from an appropriate governmental authority, and the source of the command is irrelevant; the Service's premise that these institutions were "not being ordered to do so" fails wherever a command reached the employer, which in this record is everywhere.
7. Not more than nominal: the ten percent figure as a floor
The portion of the business affected was not more than nominal (the 10 percent figure applied as a floor).
The ten percent figure is, by the United States' own account, "a safe harbor," "not determinative," "not an eligibility requirement," a provision that states "sufficient--though not necessary--conditions," and, in Tri-State, "a method for the test to be met not as a requirement to meet the test"; the District Court held it "not an exclusionary cut-off point" and "subject to rebuttal."87
The 10 percent is not determinative ... Effectively, this is a safe harbor ... Properly understood, it isn't an eligibility requirement.Doc. 44 at 14
A letter that decides a claim on the figure applies as a floor what the United States told two courts is a ceiling of its own generosity. The statute asks whether a portion of the operation was suspended, and "portion" is not "significant."88 In-person instruction is not a nominal portion of a college; auxiliary enterprises, of which housing and dining are the largest part, are 10 to 14 percent of the industry's revenue by the federal government's own tables (Ex. SEC-27-020; Ex. SEC-27-021); athletics, commencement, admissions, research and international enrollment are each a line of business with its own staff; and the third quarter of 2021 conditioned the enrollment of every student in Nevada, the attendance of every student in Washington and the employment of every worker in six jurisdictions. Where the Notice's own safe harbor is consulted at all, every showing in the function-by-function section exceeds it many times over. The position is not a close call on a contested record; it is wrong, and the United States has said so in two courts.
8. Nominal effect of the required modifications
The required modifications (masks, gloves, spacing, screening) had only a nominal effect (Q&A-18).
The statute has no nominal-effect requirement; a partial suspension is "a temporary delay, interruption, or termination of a portion [of] an employer's business," and Tri-State refused the United States' attempt "to conflate 'more than nominal' to suggest that it means 'significant.'"89 Q&A-18's categorical sentence about face coverings is a factual conclusion stated as a rule, with no record, and it contradicts Q&A-18's own first paragraph, which lists "requiring employees and customers to wear face coverings" among the modifications "required by a governmental order as a condition of reopening"; the United States' position in court is that mask and operational-hours orders are "considered."90
employees having to wear face masks may impact business operationsDoc. 44 at 30
The instruments that reached this industry were not a piece of cloth. They were workplace infection-prevention and exposure-control regimes of which universal face coverings were one element beside daily screening, six-foot distancing, capacity limits, surveillance testing, isolation housing, exclusion of exposed persons and daily reporting (Ex. WA-038; Ex. WA-046; Ex. OR-021; Ex. NY-112; Ex. MN-029; Ex. UT-029; Ex. RI-033; Ex. ECO-B-044; Ex. FED-080); they fixed the capacity of every lecture hall, dining hall and residence hall at a fraction of its design; they created a testing operation that no campus had run before; and in the third quarter of 2021 they made vaccination status the condition of attendance, residence and employment (Ex. WA-071; Ex. IL-042; Ex. NV-055; Ex. MN-044; Ex. VA-045). A modification that decides who may enter a classroom, live in a dormitory or hold a job is not nominal in any sense of the word.
9. A declaration of emergency is not an order
A declaration of emergency is not an order (Q&A-10).
Agreed, and this analysis states none as one. The national emergency, the public health emergency, the Stafford Act declarations and the State emergency declarations are stated only as the record that every level of government treated the emergency as continuing without interruption on every day of the six quarters (Ex. FED-016; Ex. LAW-246; Ex. LAW-247; Ex. WY-001; Ex. NJ-052). Every instrument on which the proof rests is an order, proclamation, regulation, statute, directive or court order with operative terms: a prohibition on in-person classes (Ex. WA-008), a condition of reopening (Ex. WA-038), a testing mandate (Ex. UT-029), a quarantine (Ex. NY-006), an enrollment condition (Ex. NV-055), a vaccination-or-testing requirement (Ex. IL-042), an indoor face-covering rule, a workplace exposure-control requirement enforced at $500 per day (Ex. OR-048), a statute with a $5,000-per-violation penalty (Ex. FL-030). The Service is entitled to insist that a declaration alone is not an order; it is not entitled to treat the orders issued under the declarations as if they were declarations.
10. The supplier was not closed; supply-chain effects too attenuated
The supplier was not itself closed by order; supply-chain effects are too attenuated (AM 2023-005).
AM 2023-005 says of itself that it "may not be used or cited as precedent," and Tri-State said of the supplier scenarios in the Service's Chief Counsel memorandum that "these situations are not comparable or persuasive."91 Q&A-12's own words provide that an employer "may be considered to have a full or partial suspension of operations due to a governmental order" when its suppliers "are unable to make deliveries of critical goods or materials due to a governmental order that causes the supplier to suspend its operations"; the words "narrow," "limited," "exception" and "absolutely could not operate" appear nowhere in it, and the Example's reference to an "alternate supplier" is a fact of the illustration, not a condition the answer imposes; and the United States has told the Ninth Circuit the same.92
never even mentions a 'physical[ ] clos[ure]' order against the supplierBr. for Appellees at 41 n.5
For this industry the counterparties were closed by order in terms: the hospitals that host clinical placements barred "non-essential health care personnel" and suspended elective services (Ex. AL-005); the school districts that supply dual-enrollment students and host student teachers were closed (Ex. GA-003; Ex. KS-005; Ex. NC-002); the consulates through which international students arrive were closed (Ex. AGY-FED-LABOR-IMMIGRATION-060); the bars, restaurants and hotels of the college town were closed (Ex. IA-023); the transit that carries students was cut and masked (Ex. MET-SDF-030; Ex. FED-020); the food-service, housing and custodial contractors were bound by the orders on the institution's premises and by the State workplace standards (Ex. ECO-B-044; Ex. MET-MSP-062). Causation through a counterparty is the Government's own position, and the counterparty orders in this record are not attenuated; they are on the face of the instruments.
11. The orders had lifted before the quarter began
The orders had lifted before the quarter began; any effect was a lingering effect.
The orders did not lift. The third-quarter inventory in the quarters section lists the instruments in force in that quarter by issuer, date, operative clause, enforcement and status on July 1 and September 30, and the paragraph headed "What this analysis does not claim was in force" names the expired instruments so that the proof rests visibly on none of them. Washington's higher-education series never ended (Ex. WA-071; Ex. WA-079; Ex. WA-081); Oregon's higher-education order ran to 12:01 a.m. on June 30, 2021 and its statewide indoor face-covering rule, an exposure-control requirement on every workplace, followed August 13 (Ex. OR-043; Ex. OR-048); the campus orders of Illinois, Nevada, Minnesota, Virginia, Philadelphia and Denver and Massachusetts's executive-department vaccination order, which addressed higher education by name, issued inside the quarter (Ex. IL-042; Ex. NV-055; Ex. MN-044; Ex. VA-045; Ex. MA-068; Ex. MET-PHL-021; Ex. MET-DEN-023); the federal conveyance, entry, testing, border and workplace orders ran on every day (Ex. FED-020; Ex. FED-207; Ex. FED-042; Ex. FED-232; Ex. FED-080). Where an earlier order had ended, the suspension it caused continued because of it for the period its compelled dismantling took to reverse, and the interconnected-economy section states that period from the orders' own reopening steps and sunset dates: the clause's grammar places "during the calendar quarter" on "suspended," Tri-State defines suspension to include "delay," "due to" is but-for, and the Notice's own Q&A-22 and Q&A-16 recognize a suspension that outlasts the order. The Service's phrase for that period is not the statute's; the statute's word is "suspended," and a campus rebuilding an operation the orders dismantled was suspended within it. The position that the orders had lifted before July 1, 2021 cannot be squared with the Federal Register or with the proclamations of the Governor of Washington signed on June 30, 2021 for July 1.
12. No decline in gross receipts
The employer did not experience the required decline in gross receipts.
The gross-receipts prong is an alternative route to eligibility, not a condition of the suspension prong, and this analysis does not rely on it. Congress wrote a numerical threshold into clause (II) and none into clause (I), and "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."93 Tri-State held that the gross-receipts prong "does not make the Gross Receipts Test superfluous with the plain language interpretation of 'partial suspension' but instead logical within the scope of the act," and that "an employer may be economically affected without any partial or full suspension of trade or business operations due to a government order."94 A college whose in-person instruction was prohibited by order was partially suspended whether its tuition fell, held or rose; the question of receipts is a question the statute asks of a different employer under a different clause.
13. Guidance, recommendations or best practices, not orders
The instruments relied on are guidance, recommendations or best practices, not orders.
Every instrument on which this analysis rests is an order, proclamation, regulation, statute, directive or court order of an appropriate governmental authority with operative terms and, in nearly every case, a stated sanction: Washington's proclamations, enforced as gross misdemeanors under RCW 43.06.220(5) (Ex. WA-008; Ex. WA-071; Ex. WA-079); Oregon's executive orders under ORS 401.192 and its indoor face-covering rule at $500 per day (Ex. OR-059; Ex. OR-021; Ex. OR-048); Virginia's orders as Class 1 misdemeanors (Ex. VA-006; Ex. VA-010); Illinois's executive orders under 20 ILCS 3305 (Ex. IL-005; Ex. IL-042); New Jersey's orders under N.J.S.A. App. A:9-49 and -50 (Ex. NJ-002; Ex. NJ-024); Wyoming's public health orders as misdemeanors (Ex. WY-004); Connecticut's quarantine at $1,000 per violation (Ex. CT-023); Massachusetts's at $500 per day (Ex. MA-025); New York's at up to $10,000 (Ex. NY-006); Nevada's Board of Health regulation enforced by exclusion from enrollment (Ex. NV-055); Philadelphia's regulation by cease-operations orders and fines (Ex. MET-PHL-021); Dallas County's at $1,000 per violation (Ex. MET-DFW-030); Florida's statute at $5,000 per violation (Ex. FL-030); the CDC's conveyance order by criminal fine (Ex. FED-020); OSHA's standard by citation (Ex. FED-080). Where a State health department's guidance is cited, it is cited because a governor's order made compliance with it the condition of operating: New York's Interim Guidance under EO 202.45, which provided that Phase Four businesses "must be operated in compliance with the guidance promulgated by the Department of Health" (Ex. NY-031; Ex. NY-112); Oregon's minimum standards under EO 20-28 (Ex. OR-021); California's institutions-of-higher-education guidance under the stay-at-home order and the Blueprint (Ex. AGY-ST-EDUCATION-HIGHER-ED-009); Minnesota's guidelines under EO 20-85 (Ex. MN-029). The Court of Federal Claims itself has held that health-department guidance issued under compulsory authority "qualifies as an 'order.'"95 The conference statements and advisory reports in the Library are marked as context and stated as facts and circumstances, never as orders (Ex. AGY-ST-EDUCATION-HIGHER-ED-021; Ex. SEC-27-024). A proclamation whose violation is a gross misdemeanor under RCW 43.06.220(5) is not a recommendation.
14. "Order" must be given its ordinary meaning
'Order' must be given its ordinary meaning.
Agreed, and applied. An order is "[a]n authoritative indication to be obeyed; a command or direction," and the Service's own Q&A-10 counts "orders, proclamations, or decrees" as orders "without regard to the level of enforcement."96 Under that meaning every instrument in the tables on this page is an order: the proclamation that "prohibit[ed] all public and private universities, colleges, technical schools ... from conducting in-person classes" (Ex. WA-008); the executive order under which "colleges and universities shall be prohibited from conducting in-person classroom, laboratory, and other instruction" (Ex. OR-059); the order that "[i]nstitutions of higher education shall cease all in-person classes and instruction" (Ex. VA-006); the public health order that "[a]ll colleges, universities, and trade schools shall not hold in person classes" (Ex. WY-004); the executive order that a public or private institution of higher education "shall require each individual ... to obtain a diagnostic test ... each week" (Ex. UT-029); the proclamation that institutions without fully vaccinated campuses "are prohibited from providing" in-person instruction unless they verify vaccination status (Ex. WA-071); the regulation that "a person shall not enroll in courses at a university, community college, or state college on or after November 1, 2021, unless" vaccinated (Ex. NV-055); the executive order that institutions "must exclude non-compliant workers from the premises" (Ex. IL-042); the statute that an institution "may not require an individual to wear a face covering" anywhere on campus (Ex. UT-045). The ordinary meaning of "order" is the meaning this analysis applies, and under that meaning every instrument named on this page is an order.
The Service is free to disagree about the weight of these instruments. It is not free to say they did not exist.