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Biden Can Force Vaccines on Contractors, DOJ Tells 11th Circuit

April 8, 2022, 9:17 PM

The U.S. government told a federal appeals court Friday that the president has the power to mandate the Covid-19 vaccine for federal contractors to help businesses run more efficiently as they deal with the virus and its effect on workers.

The Justice Department pushed the U.S. Court of Appeals for the Eleventh Circuit to overturn a nationwide injunction imposed against President Joe Biden’s executive order that would require federal contractors, which represent roughly a fifth of the nation’s workforce, to get the vaccine.

A federal court in Georgia in January blocked Biden’s order, and a string of other states challenged the mandate. At least four appeals courts are weighing the question of whether the president has the authority to impose the vaccine as part of the government’s own contracts. The Justice Department said during the argument Friday that it will appeal an injunction in Arizona as well.

“It’s not our position that the president can do whatever he wishes, but it should be a nexus between economy and efficiency,” said Joshua Revesz, a Justice Department attorney, who urged the appeals court to overturn the injunction because of presidential powers contained in the Procurement Act. “This is a statute that allows the president to tell his own agencies what to do.”

The mandate affects high-profile companies doing business with the federal government, including Lockheed Martin Corp., Microsoft Corp., Alphabet Inc.‘s Google, and General Motors Co.

The executive order was part of a suite of vaccine requirements the Biden administration imposed, including for the federal workforce, private businesses with more than 100 employees, and health-care workers. Challenges to these orders have yielded different results: the U.S. Supreme Court blocked enforcement of the private business mandate, but allowed the health-care requirement to move forward.

The Fifth Circuit Thursday overturned a portion of the mandate requiring federal workers get the vaccine.

President’s Power

Revesz argued that requiring the vaccine would prevent workers across the country from getting sick, spreading it to co-workers, and therefore slowing down transactions of companies that do business with the government.

Stephen Petrany, solicitor general for the Georgia Attorney General’s office, countered that the president doesn’t have the authority to impose the mandate, but the powers are “benign” and can only affect the government’s own processes.

When questioned about whether the vaccine mandate strips rights from contractors, he offered an example of Georgia Tech University, which receives a third of its revenue from the federal government, and would have no choice but to comply.

“It doesn’t give the president power to impose social and health policy by commandeering the rights of federal contractors,” Petrany said.

Bias Statutes

The judges asked the attorneys about other executive orders that presidents have required of contractors, including anti-discrimination and wage requirements that are more robust than those that apply to other employers.

Petrany disagreed that these other executive orders offer a parallel.

“This does not necessarily reach beyond this case to every time this government imposes a legal requirement on contractors,” he said.

Eleventh Circuit Judge Lanier Anderson disagreed, saying vaccines can better help streamline business processes.

“It seems to me this executive order has a closer connection to efficiency than the anti-discrimination or wage price. A proprietor naturally wants to have his work done efficiently,” Anderson said. “If you are not vaccinated, there is a much greater chance you’ll get sick and delay the work.”

The government hasn’t identified a single way that Covid-19 slowed down efficiency, Petrany said.

But if fewer workers get sick, more work can get done, Revesz said, adding that other “controversial” orders have been issued under the Procurement Act without challenge.

Injunction Reach

The Justice Department also questioned whether the Georgia court’s order can reach beyond its jurisdiction. The construction trade group Association of Builders and Contractors intervened in the case, which the federal court cited as a reason to allow the ruling to apply across the country.

Petrany argued that a nationwide injunction was appropriate because different rules shouldn’t govern contractors in different states.

“A nationwide injunction should be rare, but in this case it makes sense because it’s national in scope,” he said.

Larry Stine, who represented the Association of Builders and Contractors, told the court that he presented evidence that showed companies around the country were struggling to hold on to workers who refused to get the vaccine.

In addition to Anderson, Judges Britt Grant and William Pryor heard the arguments in the case.

The case is Georgia v. Biden, 11th Cir., No. 21-14269, oral arguments 4/8/22.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Laura D. Francis at lfrancis@bloomberglaw.com