Constangy.com News & Analysis
Vaccine mandate for federal contractors goes down! (Temporarily. And in three states.)
12.1.21
A federal judge has issued a preliminary injunction that prohibits the federal government from enforcing the COVID-19 vaccine mandate that applies to federal contractors. The injunction applies only in the states of Kentucky, Ohio, and Tennessee.
According to U.S. District Court Judge Gregory F. Van Tatenhove, who was appointed by President George W. Bush, President Biden is unlikely to have the authority to mandate COVID-19 vaccinations for employees of federal contractors and subcontractors.
Judge Van Tatenhove’s decision was issued yesterday in a lawsuit that was brought by the states of Ohio and Tennessee, the Commonwealth of Kentucky, and two Ohio county sheriffs. In the view of the court, Congress has delegated to the President the authority to manage federal procurement of goods and services. But the judge said that it was unlikely that the President’s authority extended to requiring federal contractors and subcontractors to mandate employee vaccinations.
According to the decision, here is where the federal contractor mandate is likely to have gone too far:
The President has probably exceeded the authority given to him in the Federal Procurement and Administrative Services Act.
The FPASA gives the President the authority to manage federal procurement, but his power is limited. The President may take actions only if they fall within the express provisions of the Act. According to Judge Van Tatenhove, “While the statute grants to the president great discretion, it strains credulity that Congress intended . . . a procurement statute[] to be the basis for promulgating a public health measure such as mandatory vaccination.”
If “economy and efficiency in federal procurement” encompasses vaccine mandates, then the FPASA could be used to impose virtually any requirement on contractors, the judge said. Thus, the judge determined that the President’s Executive Order exceeded the scope of his authority under the FPASA.
The President has probably exceeded his authority under the Competition in Contracting Act.
The Competition in Contracting Act requires federal agencies to provide “full and open competition through the use of competitive procedures.” Because the COVID-19 vaccine mandate will exclude otherwise qualified companies from competing for federal contracts, it eliminates entities that may present the best value to the government. According to Judge Van Tatenhove, the government cannot impair competition in this fashion without complying with the procedures in the Act.
A vaccine mandate is, in all likelihood, a non-delegable action that only Congress can impose.
The “non-delegable doctrine” derives from Article I of the United States Constitution, which states, “All legislative Powers herein shall be vested in a Congress of the United States. . . .” This clause means that only Congress can make laws and that Congress cannot delegate the power to make laws to another branch of government. The petitioners argued that mandating COVID-19 vaccinations for millions of employees of contractors should be done, if at all, by Congress.
Judge Van Tatenhove noted that a panel of the U.S. Court of Appeals for the Fifth Circuit recently stayed the Emergency Temporary Standard issued by the Occupational Safety and Health Administration. The OSHA ETS would require nearly all private sector employers with 100 or more employees to mandate that their employees be vaccinated against COVID-19 or submit to weekly COVID tests (with limited exceptions). One basis for the Fifth Circuit stay was that the ETS violated the non-delegable doctrine. “If OSHA promulgating a vaccine mandate runs afoul of the nondelegation doctrine,” Judge Van Tatenhove said, “the Court has serious concerns about the FPASA, which is a procurement statute, being used to promulgate a vaccine mandate for all federal contractors and subcontractors.” (Emphasis added.)
The power to require vaccination is probably reserved to the states in any event.
The Tenth Amendment to the Constitution provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Health matters have traditionally been regulated by the states, not by the federal government. Judge Van Tatenhove repeated the Fifth Circuit’s concerns regarding the OSHA ETS and said, “[T]here is serious concern that [the federal government] ha[s] stepped into an area traditionally reserved to the States, and this provides an additional reason to temporarily enjoin the vaccine mandate.”
On the other hand, the judge preliminarily rejected arguments that the government failed to follow proper procedures for implementing the vaccine mandate. Although the government actions were “inartful and a bit clumsy,” he said that they were probably saved by the last-minute promulgation of a revised Determination from the Office of Management and Budget on November 16.
The (semi) final outcome
Judge Van Tatenhove has issued a preliminary injunction, which means that the government -- for now -- is prohibited from enforcing the contractor vaccine mandate in Kentucky, Ohio, or Tennessee, the three states that challenged the mandate. Preliminary injunctions are, as the name implies, only preliminary. The case is still pending, and the final outcome may be different.
The big question now, though, is whether the other courts with these challenges pending will also enjoin the mandate. We will continue to monitor.
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