Among the several COVID-19 vaccine mandates issued by President Joe Biden was one aimed at all federal contractors and subcontractors which was subsequently challenged by a handful of states and ruled unconstitutional by a federal district court.
Now a federal appeals court panel has ruled 2-1 to affirm that lower court’s decision and uphold a limited injunction against enforcement of the vaccine mandate as a condition for federal contract employment, the Conservative Brief reported.
Biden’s ordered vaccine mandate for federal contractors
It was on Sept. 9, 2021, that President Biden issued an executive order that cited authorities granted to him by Congress through the Federal Property and Administrative Services Act, better known as the Procurement Act, to take certain actions “in order to promote economy and efficiency in procurement by contracting with sources that provide adequate COVID-19 safeguards for their workforce.”
The order went on to assert that the “adequate COVID-19 safeguards” — which included full vaccination — pertained to all “workers performing on or in connection with a Federal Government contract or contract-like instrument.”
A fully vaccinated workforce would ostensibly “decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the Federal Government. Accordingly, ensuring that Federal contractors and subcontractors are adequately protected from COVID-19 will bolster economy and efficiency in Federal procurement.”
Biden then directed the Safer Federal Workforce Task Force and the Office of Management and Budget to promulgate and implement any necessary guidance or rules to put his vaccine mandate order for all federal contractors and subcontractors and their employees into effect.
Injunction issued by district court
Three Republican-led states — Louisiana, Indiana, and Mississippi — challenged the federal contractor vaccine mandate in federal court and were granted a preliminary injunction by a district judge. However, that injunction only applied to the three plaintiff states and was stayed from taking effect pending review by the appeals court.
That review has now been concluded by a three-judge panel of the Fifth Circuit Court of Appeals, and by a ruling of 2-1, it was affirmed that President Biden’s vaccine mandate for federal contractors was an unlawful overreach of his executive authority,” Reuters reported.
“The President asks this Court to ratify an exercise of proprietary authority that would permit him to unilaterally impose a healthcare decision on one-fifth of all employees in the United States,” the majority wrote. “We decline to do so. Thus, we AFFIRM the preliminary injunction issued by the district court.”
President does not have “boundless scope” of power under Procurement Act
In reviewing the limited number of prior judicial precedents involving presidential orders citing the Procurement Act, it was noted that such orders were generally allowed to stand if a “close nexus” could be shown between the subject of the order and the Act’s requirement of promoting “economy and efficiency” in the federal procurement process.
The judges notably took issue with the apparent lack of limitations and “boundless scope” inherent in the undefined “close nexus” standard and offered up a set of hypothetical presidential orders that, while technically passing muster as lawful under the standard, would nonetheless be widely viewed as an egregious overreach by most Americans.
The court imagined orders prohibiting all federal contractor and subcontractor employees to refrain from smoking or even being around smoking at any time, for their own health, as well as other hypothetical requirements that “all federal contractors certify that their employees take daily vitamins, live in smoke-free homes, exercise three times a week, or even, at the extremity, take birth control in order to reduce absenteeism relating to childbirth and care.”
In response to those hypotheticals, the government argued that this was different due to the “once-in-a-generation” pandemic, but the judges wrote, “The Constitution is not abrogated in a pandemic. Nor, as the Supreme Court’s COVID-related decisions make clear, are our legal principles of statutory interpretation. And nor, for that matter, is Congress, who could have drafted vaccination-related laws or even made clear its intent regarding the President’s proprietary authority in federal contracting or employing.”
“We do not, and cannot, rule on the efficacy of any vaccine, the wisdom of the President’s action, or even whether or not this action would, in fact, increase economy and efficiency in federal contracting,” the court concluded. “Today, we are asked, where Congress has not authorized the issuance of this mandate, whether the President may nonetheless exercise this power. We hold that he may not. Accordingly, we AFFIRM the district court’s grant of an injunction.”