Bloomberg Law
Dec. 19, 2022, 5:58 PMUpdated: Dec. 19, 2022, 8:56 PM

Fifth Circuit Blocks Biden’s Contractor Vaccine Mandate (2)

Khorri Atkinson
Khorri Atkinson
Senior Labor & Employment Reporter

President Joe Biden was blocked from enforcing his Covid-19 vaccine mandate for government-contractor workers in Louisiana, Mississippi, and Indiana after a split federal appeals court in New Orleans found that he overstepped his authority, adding to a string of court losses for the administration.

The government unsuccessfully sought to vacate a Louisiana lower court’s December 2021 order blocking the mandate for companies that do business with the federal government. “To allow this mandate to remain in place would be to ratify an ‘enormous and transformative expansion in’ the President’s power under the Procurement Act,” said Judge Kurt D. Engelhardt of the US Court of Appeals for the Fifth Circuit, who wrote the majority’s opinion joined by Judge Don R. Willett.

The majority opinion Monday echoed arguments by the three states that Biden’s order, if affirmed, would set precedent that goes beyond the contractor workplace and into the realm of public health. Under the administration’s theory, the only practical limit on presidential authority in this sphere is the executive’s ability to tie policy priorities to a notion of economy or efficiency, the judges said.

“To an extent, this is borne out by the statutory text. The statute introduces no serious limit on the President’s authority and, in fact, places discernment explicitly in the President’s hands,” Engelhardt wrote. However, Congress must explicitly give the executive the power to issue such a mandate that has “vast economic and political significance,” the judge added.

But Judge James E. Graves Jr., who dissented, agreed with the administration that Biden acted within the scope of his statutory authority.

“It is true that there must be limiting principles to the President’s authority under the Procurement Act,” but the majority “conjures up the most extreme and unlikely scenarios to” vacate the mandate, he said.

The federal contractor mandate—which the government declined to enforce while litigation proceeds—would apply to roughly a quarter of the US workforce, and affect businesses including Lockheed Martin Corp., Microsoft Corp., Alphabet Inc.‘s Google, and General Motors Co.

One of the states’ key defenses was that the mandate infringes on rights reserved under the 10th Amendment to regulate health and safety matters within their borders.

The Fifth Circuit is the fourth federal appeals court to weigh in on Biden’s order, which has been challenged by several Republican-led states.

The Sixth and Eighth circuits heard oral arguments in July and August over two lower courts’ preliminary injunctions blocking the mandate.

The Sixth Circuit case concerns federal contractors in Kentucky, Ohio, and Tennessee, while the Eighth Circuit litigation involves contractors in Arkansas, Alaska, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

The Eleventh Circuit in August granted Biden a narrow victory when it partially overturned a nationwide injunction from a federal court in Georgia last year blocking the mandate. The court said Biden can only enforce the mandate in Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia.

Louisiana Attorney General Jeff Landry, who’s leading the Fifth Circuit case, said in a statement to Bloomberg Law that Monday’s ruling “is a victory for freedom. We will continue to stand up against these abuses of power that threaten us now and in the future.”

A White House spokesperson referred questions to the US Department of Justice. The DOJ didn’t immediately respond to a request for comment.

The case is State of Louisiana v. Biden, 5th Cir., No. 22-30019, 12/19/22.

(Updated with comments from related parties in the 13th and 14th paragraphs. )

To contact the reporter on this story: Khorri Atkinson in Washington at

To contact the editors responsible for this story: Genevieve Douglas at; Rebekah Mintzer at; Martha Mueller Neff at