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The Biden administration received another judicial rebuke over its attempt to enforce a COVID vaccine mandate for federal contractor employees Wednesday. The Sixth U.S. Circuit Court of Appeals, which was the first federal appellate court to consider whether the contractor mandate is legal, expressed a strong view that it is not.
On the key question of whether the president has the legal authority to use procurement law to mandate vaccines for the contractor workforce, the three-judge panel voted 2-1 to uphold a ruling by a federal judge in Kentucky which found the Biden administration overstepped its bounds.
In that November decision, Judge Gregory F. Van Tatenhove found the 1949 Federal Property and Administrative Services Act, a law that gives the president the power to promote “economy and efficiency” in federal contracting, couldn’t be used to justify a vaccine requirement. In that decision, the lower court blocked the mandate in Kentucky, Ohio and Tennessee.
Although that ruling was the first preliminary injunction on the contractor mandate, similar cases are working their way through the judicial system in other districts and appellate courts. Thus far, none have sided with the Biden administration.
Administration lawyers have argued the statute gives presidents wide latitude to set procurement policies, and that the vaccine mandate is justified because it would prevent illnesses among the contractor workforce the government depends on.
Wednesday’s majority generally agreed with the Kentucky court, finding the Procurement Act can’t be wielded to implement public health measures.
“If the president can order medical interventions in the name of reducing absenteeism, what is the logical stopping point of that power?” the court asked in Wednesday’s opinion. “Even vaccinated employees may contract the flu (or COVID-19) at family gatherings, concerts, sporting events, and so on … Such off-the-job conduct very well may threaten to cause on-the-job absenteeism. So why, if the government’s interpretation is correct, does the Property Act not confer a de facto police power upon the president to dictate the terms and conditions of one-fifth of our workforce’s lives? The government has never reckoned with the implications of its position or proposed any limiting principle to allay our concerns.”
The dissenting judge, R. Guy Cole, Jr., however, agreed with the government’s position that the Procurement Act authorized the mandate. He said he would have approved the Biden Administration’s request to put Judge Tatenhove’s injunction on hold and let the mandate be enforced.
“The health and safety of the government’s workforce amid a global and worsening pandemic has direct and tangible effects on the economy, and, by extension, on the government’s ability to procure and supply services,” he wrote. “The federal government has clearly demonstrated irreparable harm in the form of significant productivity losses not only from leave and health care costs for workers who are sick, quarantined, and unable to perform due to COVID-19, but also scheduling delays and reduced performance quality — by its estimate approximately $2 billion per month that the injunction is in place.”
But even if the government had won its case before the Sixth Circuit, such a decision likely wouldn’t have had much of an impact in the short-term.
That’s because a separate federal district court ruling, by a judge in Georgia, has temporarily blocked the contractor vaccine mandate nationwide. That opinion also found the president overstepped his bounds under the Procurement Act. The government has appealed that ruling too, and the case is now before the 11th Circuit Court of Appeals.
Last month, that appellate court denied an emergency request by the Justice Department to immediately reverse the nationwide injunction. But the judges also agreed to an “expedited” decision process once they consider full written briefings and oral arguments from the government and the plaintiffs.
Those parties include state elected officials in Georgia and six other states, plus a construction trade association, the Associated Builders and Contractors (ABC). There, the district court found a nationwide injunction was warranted because ABC has members throughout the country, and temporarily blocking the mandate in all 50 states was the only way to address what it found was an “extreme economic burden” for those vendors.
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The attempt to use the procurement system to increase vaccination rates is only one of several vaccine mandates the Biden administration has issued.
On Friday, the Supreme Court plans to hear arguments in several cases that challenged the administration’s orders, via the Occupational Health and Safety Administration and the Centers for Medicare and Medicaid Services, to require vaccinations in private sector workplaces and health care settings. Lower courts have also found those mandates to be legally invalid.
So far, the administration has had fared much better in defending its vaccine mandates for federal civilian employees and members of the military.
Courts have generally sided with the government in enforcing those mandates. A judge in Oklahoma, for example, ruled last week that that state’s lawsuit seeking to exempt its members of the National Guard from the military vaccine mandate was “without merit.”
In that case, Judge Stephen Friot urged the Defense Department to give Oklahoma National Guard members additional time to get vaccinated but only because they’d received what was, in his view, extremely poor guidance from state leaders about whether they could legally avoid the DoD mandate.
“The court strongly urges the defendants to give every consideration to providing a brief grace period to facilitate prompt compliance with the vaccination mandate before directly or indirectly taking action which would end the military careers of any Oklahoma Guard members,” he wrote.
Although though no court has completely invalidated the mandates for federal employees, earlier this week, a federal judge barred the Navy from enforcing it against 35 sailors in the special operations community, all of whom have sought religious exemptions.
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Judge Reed O’Connor said the Navy’s process for considering those exemptions was pure “theater,” designed from the outset to deny anyone who applied for them. Because of that, he found the Navy’s process was a violation of their rights under the constitution and the Religious Freedom Restoration Act.
“The Navy has not granted a religious exemption to any vaccine in recent memory. It merely rubber stamps each denial,” he wrote. “The Navy service members in this case seek to vindicate the very freedoms they have sacrificed so much to protect. The COVID-19 pandemic provides the government no license to abrogate those freedoms. There is no COVID-19 exception to the First Amendment. There is no military exclusion from our constitution.”
Jared Serbu is deputy editor of Federal News Network and reports on the Defense Department’s contracting, legislative, workforce and IT issues.
Follow @jserbuWFED
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