As part of his efforts to combat the COVID-19 pandemic, President Biden issued a series of vaccine mandates. The Supreme Court of the United States has already enjoined the federal government from enforcing the OSHA-issued mandate for large employers but has upheld the vaccine mandate for healthcare workers (see the relevant stories published on 15 January 2022 and 21 January 2022 respectively).
Amongst them, the Biden Administration issued a mandate ordering all federal agencies to include in their new contracts a clause that would require contract recipients to ensure that their employees wear masks at work and be vaccinated against COVID-19. Since approximately 20% of the nation’s labor force works for a federal contractor, the scope of the mandate was stunning. To introduce such a wide-ranging vaccine mandate - which ordered vaccination to tens of millions of Americans - the President invoked an old procurement statute, the Federal Property and Administrative Services Act. This statute states that its purpose "is to provide the Federal Government with an economical and efficient system" for procurement, contracting, and other related activities. It also enables the President to "prescribe policies and directives that the President considers necessary to carry out this subtitle," provided that "[t]he policies must be consistent with this subtitle”. Shortly after the President issued the contractor mandate, Ohio, Kentucky, Tennessee, and two Ohio sheriff’s offices filed suit seeking to prevent enforcement of the mandate. They alleged that the executive actions had to be enjoined on a host of statutory, administrative, and constitutional grounds and the district court agreed.
Shortly after the President issued the contractor mandate, Ohio, Kentucky, Tennessee, and two Ohio sheriff’s offices filed suit seeking to prevent enforcement of the mandate. They alleged that the court should enjoin enforcement of the executive actions on a host of statutory, administrative, and constitutional grounds. The district court upheld their claims.
By judgment of 12 January 2023, the Court of Appeals for the Sixth Circuit aligned with the district court’s conclusions and confirmed that the enforcement of the vaccine mandate at issue must be enjoined. The appellate federal court noted that to justify the issuance of the mandate the Government had relied on the declaration of purpose contained in the Property Act. However, similarly to prologues and prefatory clauses, general statements of purpose “provide no legal authority”, the Court said. As already highlighted by the District Court, “although [by the Property Act] the Congress used its power to delegate procurement authority to the president to promote economy and efficiency federal contracting, this power has its limits [...] if a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency”. Since no other provisions of the statute could justify the adoption of the mandate - which, on account of its width, would have required an express attribution of powers - the Court concluded that the President had exceeded his authority and the enforcement of the vaccine mandate had to be enjoined.
The decision at hand follows similar decisions issued by the Court of Appeals for the Eleventh Circuit and Court of Appeals for the Fifth Circuit, which both recently upheld injunctions against the same mandate in various states.
Reference: Commonwealth of Kentucky et al v. President Biden, Court of Appeals for the Sixth Circuit, 12 January 2023.
