Vax Mandate Orders Muddy President’s Procurement Act Authority

A patchwork of different federal court rulings on the president’s authority to mandate vaccines for the employees of federal contractors provides ammunition to challenge future White House procurement policies.

President Joe Biden’s Covid-19 vaccine mandate for federal contractors expired last week with the end of the pandemic health emergency. The administration never had a chance to enforce it because it was paused amid a string of lawsuits claiming that the president overstepped his authority under the Procurement Act.

The mandate’s sunset makes it highly unlikely that the US Supreme Court will resolve a split among four federal appeals courts that have addressed the issue, legal scholars told Bloomberg Law.

And that split maintains a broader uncertainty over the scope of a president’s ability to issue executive orders—such as those related to wage rules and diversity, equity and inclusion requirements—undergirding the Procurement Act’s goal of promoting “economy and efficiency” in federal contracting.

Lingering doubts over that authority will make any president’s future procurement-related executive orders more vulnerable to court challenges, attorneys said.

“The circuit split will be sure to trip up contractors when the next emergency arises, and is certain to trigger some non-emergency litigation challenging administration policies that seek to exert ‘proprietary’ rather than ‘regulatory’ executive authority,” said Jeffery M. Chiow, co-chair of Greenberg Traurig LLP’s Government Contracts Practice.

Jim Paul, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart PC, said executive orders can be challenged for a variety of reasons, but the split decisions “give anybody plenty of ammunition to challenge the president over future executive orders” issued under the procurement statute.

“There’s going to be easy arguments to make, not to say they’re going to prevail, but it’s going to be an uphill battle for the administration,” Paul said.

Split Over Authority

The US Court of Appeals for the Ninth Circuit created a split with three other federal appeals courts last month when it vacated a district court injunction shielding Arizona contractors from complying with the vaccine rule.

The Ninth Circuit didn’t address the scope of the president’s authority under the statute, but the opinion cited Fourth and District of Columbia circuit precedent holding that executive branch policies are lawful if they reasonably relate to the Procurement Act’s purpose.

That ruling clashes with decisions by the Eleventh, Sixth, and Fifth circuits, which held that Biden overstepped his authority with the vaccine requirement.

A broad reading of the statute, which grants the executive branch flexibility and authority to ensure economy and efficiency in federal procurement and contracting, would be an enormous transfer of power, those courts said. That interpretation could allow any president to advance any number of policy priorities under the guise of those goals, they said.

It also undercuts the need for limits on the president’s authority under the law, and Congress must explicitly give the executive such a broad power, they said.

The Ninth Circuit’s contrary decision offers the government a defense to future challenges to procurement policies, legal observers said. But contractors could be exposed to different legal requirements depending on their locale.

“The issue of vaccine-mandates illustrates the point that the more tenuous the nexus an executive order has to promoting the economy and efficiency in federal contracting, reasonable judges may differ regarding the scope of the President’s authority under the Procurement Act,” said Marcia Madsen, chair of Mayer Brown LLP’s government contracts practice.

That legal uncertainty means the president “may be a little more reluctant” to apply the procurement statute for broad executive orders, said Alan Chvotkin, an attorney who specializes in government contracts law.

Fact-Specific

The Biden administration also encountered mixed court decisions on its shot requirements for federal employees, health-care workers, and employees at large private businesses.

The Supreme Court invalidated the Occupational Safety and Health Administration’s shot-or-test rule that would have required 80 million workers to get Covid vaccines or periodic tests, finding that it was an unauthorized exercise of federal agency power. But the high court allowed the mandate for more than 17 million workers at health-care facilities receiving Medicare and Medicaid funding.

But if the Supreme Court were to rule on the president’s power to require vaccines for federal contractors under the Procurement Act, it doesn’t necessarily mean that analysis could be applied to other legal fights, Paul said.

“On one hand, it could’ve laid out a good test and rule for the authority of the administration under the Procurement Act, but it would’ve been automatically limited by the facts,” he said.

The pandemic is an unusual circumstance, “so whatever could’ve happened at the Supreme Court with the federal contractor vaccine, it may or may not have solved the issue. It would have been limited to the facts of the pandemic,” he added.

The partisan deadlock in Congress is another reason that presidents feel forced to enact certain policies “through executive orders with some difficulty,” Paul said.

Despite the “near certainty” of legal challenges to future procurement policies, any president “will continue using the Act’s broad authority to require government contractors to comply with certain actions viewed as necessary for a particular purpose or to confront a future national emergency,” Madsen said.