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Federal Contractor Vaccine Order Blocked by Judge in Kentucky

Nov. 30, 2021, 9:32 PM

President Joe Biden doesn’t likely have the power to mandate vaccines for federal contractors and their subcontractors, a Kentucky federal court said Tuesday, halting the order issued by the administration for the conservative-led states challenging it.

Kentucky, Ohio, and Tennessee sued the Biden administration arguing that the mandate for companies that do business with the U.S. government violated the U.S. Constitution.

The president, in all likelihood, can’t use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines, said U.S. District Court Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky. He granted a preliminary injunction against the order for the three states.

Biden’s mandate, which applies to roughly a quarter of the U.S. workforce and affects companies such as Lockheed Martin Corp., Microsoft Corp., Alphabet Inc.‘s Google, and General Motors Co., spurred a series of federal lawsuits from states seeking to block implementation, including Arizona, Florida, Texas, Oklahoma, and Georgia. They argued that the administration lacks the authority to require vaccinations and the mandates violate the U.S. Constitution.

Van Tatenhove’s order said that Kentucky, Ohio, and Tennessee have about $9 billion, $10 billion, and $12 billion in government contracts, respectively. Contractors that refuse to comply risk being blacklisted by the government, he said, citing Biden’s remarks from Sept. 7: “If you want to work with the federal government, vaccinate your workforce.” The states have standing, as they would likely want to renew these contracts, the judge said.

The federal government’s move amounted to overreach in contracts, he said.

If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency, he said. “Although Congress used its power to delegate procurement authority to the president to promote economy and efficiency federal contracting, this power has its limits,” he wrote.

The mandate for businesses providing services for the federal government is part of a suite of Biden administration actions designed to increase vaccination rates. That includes an emergency regulation from the U.S. Occupational Safety and Health Administration that covers private-sector companies with 100 employees or more, a shot requirement for health-care companies paid by Medicare and Medicare, and one for federal workers.

Numerous challenges to those mandates are pending in appellate courts, and the U.S. Court of Appeals for the Fifth Circuit has temporarily halted enforcement of the OSHA regulation. The Sixth Circuit is poised to consider the consolidated challenges to the OSHA regulation.

The case is Kentucky v. Biden,, E.D. Ky., No. 3:21-cv-00055, 11/30/21

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

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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