The U.S. Court of Appeals for the Fifth Circuit upheld the preliminary injunction against the Biden Administration’s COVID-19 vaccine mandate for federal contract workers. The 2-1 decision by the court in New Orleans directly affects Indiana, Louisiana and Mississippi, while half of the other states have had their mandates blocked or partly blocked by other lawsuits. Even in states where litigation is not pending, the attempt by the Administration to impose a federal COVID vaccine mandate is not currently being enforced.1
The federal contract market is significant. Up to 20 percent of U.S. workers could be affected by the outcome of the litigation addressing the Administration’s COVID vaccine mandate.2
The Appellate Court found that Congress has not authorized the President to have such enormous power to be able to unilaterally set vaccine mandates for all contractors doing business with the federal government.3 4 The Court reasoned that should the mandate be upheld, the President hypothetically would be able to issue a mandate for any vaccine and compel federal contractor workers to get vaccinated as long as it was shown that it could result in a “gain to economy and efficiency in federal contracting.”5
Accordingly, upholding the mandate could be interpreted to mean that the President has, “nearly unlimited authority to introduce requirements into federal contracts.”6
Judge Kurt Engelhardt wrote:
As we now know better than ever, smoking and exposure to second-hand smoke contribute to significant and lasting health issues. It is no stretch at all to say that contractual requirements that all employees of federal contractors refrain from smoking or being in the presence of smoking at all times would result in a gain to economy and efficiency in federal contracting. Nor would it be much different than this mandate, which likewise makes demands of individuals inside and outside the work- place… Under Supreme Court precedent, this Court cannot permit such a mandate to remain in place absent a clear statement by Congress that it wishes to endow the presidency with such power.7
The government defended the vaccine mandate by citing the Procurement Act which grants the President the power to regulate government contracts. The Procurement Act gives broad discretion to the President in this manner as long as there is a “sufficiently close nexus” between “the values of economy and efficiency” and the executive order.8
The Court concluded that the major question doctrine, which allows courts to limit the power of federal agencies with regard to issues of critical political or economic importance,9 limits the President’s power preventing a vaccine mandate for all federal contractors without Congress’ clear approval.10
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1 Associated Press. Federal appeals court blocks Biden’s decision to mandate COVID vaccinations for contractors in 3 states. Fox News Dec. 21, 2022.
2 Shepardson D. Appeals court says U.S. cannot mandate federal contractor COVID vaccines. Reuters Dec. 19, 2022.
3 Shonfeld Z. Court rules White House can’t force contractors to guarantee workers have COVID vaccinations. The Hill Dec. 20, 2022
4 Halliday E, Zagger Z. Fifth Circuit Affirms Preliminary Injunction Blocking Federal Contractor COVID-19 Vaccine Mandate. National Law Review Dec. 22, 2022.
5 State of Louisiana, State of Indiana, State of Mississippi v, Joseph R. Biden, et al. Case: 22-30019 Document: 00516582132.
6 Edwards J. Appeals Court Upholds Lower Court Decision Against Federal Contractor Vaccine Mandate. Executivegov Dec 21, 2022.
7 State of Louisiana, State of Indiana, State of Mississippi v, Joseph R. Biden, et al. Case: 22-30019 Document: 00516582132.
8 Halliday E, Zagger Z. Fifth Circuit Affirms Preliminary Injunction Blocking Federal Contractor COVID-19 Vaccine Mandate. National Law Review Dec. 22, 2022.
9 TalksOnLaw. iMajor Questions Doctrine.
10 Halliday E, Zagger Z. Fifth Circuit Affirms Preliminary Injunction Blocking Federal Contractor COVID-19 Vaccine Mandate. National Law Review Dec. 22, 2022.