United States

As part of his efforts to combat the Covid-19 pandemic, President Biden issued a series of vaccine mandates, including 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 (“Procurement Act”). This statute affirms 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, several States filed suit challenging the President’s authority to issue the mandate under the Procurement Act.

As reported in a previous story published on 1 February 2023, as of January 2023 three Federal Court of appeals had already upheld the plaintiff States’s requests that the enforcement of the vaccine mandate be enjoined on a host of statutory, administrative, and constitutional grounds (see the decisions issued by the Court of Appeals for the Eleventh Circuit, the Court of Appeals for the Sixth Circuit and the Court of Appeals for the Fifth Circuit).

Amongst the various reasons grounding their decisions, such courts 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”. 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 three circuits concluded that the President had exceeded his authority and the enforcement of the vaccine mandate had to be enjoined.

However, by judgment of 19 April 2023 the Court of Appeals for the Ninth Circuit marked a split from the above Circuit Courts and upheld President Biden’s appeal against the first instance judgment which had enjoined the enforcement of the vaccine in the State of Arizona. Preliminary, the appellate judge found that the Major Questions Doctrine – which requires Congress to speak clearly if it wishes to assign to an agency decision of vast economic and political significance – does not apply to presidential actions because, differently from agencies, the President is subject to strong political accountability. In any event, even if such doctrine applied, the President had not overstepped the boundaries provided for by law. According to the appellate judge, “President Biden was justified in concluding that requiring federal contractors who worked on or in connection with federal government projects to be vaccinated against Covid-19 would promote economy and efficiency in federal contracting”. In fact, the President’s delegated executive officer had found that requiring vaccination would have reduced absenteeism, lowered cost overruns, and prevented delays on government projects. These findings showed that the Contractor Mandate had a close nexus with and a reasonable relationship to the Procurement Act’s goals of economy and efficiency. Contrary to the other Circuit Courts, the Ninth Court held that the President “was justified in finding that prescribing vaccination-related steps contractors must take in order to work on government contracts would directly promote an economical and efficient “system” for both procuring services and performing contracts”. As a consequence, the Court reversed the district court’s grant of a permanent injunction and dissolved the injunction.

Reference: Mayes v. Biden, 9th Circuit, 19 April 2023.

Opinion on the case available at www.courthousenews.com en