Wednesday, December 8, 2021

Nationwide federal contractor vaccine mandate injunction

Yesterday, the U.S. District Court for the Southern District of Georgia issued an order in Georgia v. Biden, concluding:

[T]he Court ORDERS that Defendants are ENJOINED, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.

A nationwide injunction! If you've been tracking the various vaccine mandates... well, let's just say they're not doing very well. The CMS mandate (for healthcare providers) has likewise been blocked nationwide. The headliner, i.e., the OSHA mandate, has likewise been enjoined and paused by OSHA pending a consolidated review (of a bunch of cases) at the Sixth

Why as the federal contractor mandate blocked? Well, the gist of it is that Pres. Biden relied on the Procurement Act, and the Court concluded that the Procurement Act did not authorize the president to issue such a mandate. A few of the key steps:

1. The Court recognizes that the President is authorized to set procurement policy.

The Procurement Act does "emphasiz[e] the leadership role of the President in setting Government-wide procurement policy on matters common to all agencies, Congress intended that the President play a direct and active part in supervising the Government’s management functions.”

2. But this is more like health policy.

"[T]he direct impact of EO 14042 goes beyond the administration and management of procurement and contracting; in its practical application (requiring a significant number of individuals across the country working in a broad range of positions and in numerous different industries to be vaccinated or face a serious risk of losing their job), it operates as a regulation of public health."

3. If Congress wanted to give the President this kind of vast power, they would have "clearly" said so.

"Congress is expected to 'speak clearly' when authorizing the exercise of powers of 'vast economic and political significance.'" 

"It will also have a major impact on the economy at large, as it limits contractors’ and members of the workforce’s ability to perform work on federal contracts. Accordingly, it appears to have vast economic and political significance."


In other words, the President can set procurement policy but a vaccine mandate seems more like health policy - a health policy with "vast economic and political significance." Congress has not "clearly" given him this power, so the mandate is enjoined. Although the mandate is blocked nationwide, this is just one district court's opinion. We will likely see additional opinions an appeals. 

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