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Biden Contractor Vaccine Mandate Meets Tough Fifth Circuit Panel

Oct. 3, 2022, 7:52 PM

The Biden administration faces an uphill battle at a federal appeals court in New Orleans to revive his Covid-19 vaccine mandate for government-contractor workers amid concerns that he seemed to have overstepped his authority.

Two judges at the US Court of Appeals for the Fifth Circuit traded sharp exchanges during oral argument Monday with a government attorney, repeatedly questioning the legality of Biden’s September 2021 mandate for companies that do business with the federal government. They echoed arguments by a coalition of three states—Louisiana, Mississippi, and Indiana—challenging the mandate that Biden’s order, if affirmed, would set precedent that goes beyond the contractor workplace and into the realm of public health.

Justice Department attorney David Peters maintained that a preliminary injunction a Louisiana federal judge granted in December 2021 should be vacated because Biden acted within the scope of his authority under the Procurement Act to issue orders to enhance the economy and efficiency of the federal government’s procurement system.

“At the time, vaccination was the most effective method to reduce transmission of a deadly and highly viral disease. It also provides the best protection for those with the disease,” Peters said. “Those impacts advance the economy and efficiency of federal contracting by reducing absenteeism in the federal contractor workforce.”

But Judges Kurt D. Engelhardt and Don R. Willett didn’t buy that argument and suggested Biden stretched his statutory power.

Biden’s “economy and efficiency” argument is devoid of any clear “limiting principle” and would therefore embolden future presidents to issue sweeping orders to presumably reduce health-related absences in the federal contractor workforce, the judges said.

“What are the effective limitations of the president’s authority?” Engelhardt asked Peters before inquiring whether a president could require all employees of federal contractors not to live in homes with smokers or to be of a certain fitness level to address obesity.

“It would be difficult to imagine” those hypotheticals would constitute valid executive orders, the attorney replied.

“Why not?” Willett interjected, backing up his colleague’s line of questioning. “If it can improve employee health and reduce absenteeism, why is it so hard to imagine?”

Peters repeatedly emphasized the unprecedented nature of Covid-19. He said those other health problems the two judges identified have been around for decades and never posed the same acute threats to the workforce as the pandemic.

The attorney acknowledged that no president has invoked the Procurement Act to the extent Biden has. But administrations have broadly used the statute to establish policies for contractors aimed at improving the economy and the performance of their contracts, he said.

Multiple Injunctions

The Fifth Circuit is the fourth federal appeals court to consider a challenge to Biden’s order 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. But the administration announced days after that ruling the mandate won’t be enforced while litigation proceeds.

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

Louisiana Solicitor General Elizabeth Murrill, who argued for the states in the Fifth Circuit case Monday, pointed to court rulings against the mandate and the president’s public declaration during a recent televised interview that “the pandemic is over.”

A skeptical Judge James E. Graves asked what Biden’s comment had to do with the case before the panel.

States have billions of dollars in federal contracts that are affected by the mandate, and Biden’s comment “specifically goes to the argument that there’s no irreparable harm and the balance of equities favors the government,” Murrill said.

“The president declared the pandemic is over and none of the contracting in the United States has collapsed since the injunction has been in effect,” she added.

Graves at one point reasoned that the president has limited authority but suggested his actions sought to address the novel issues the pandemic brought to the fore.

The judge also pushed back on Murrill’s argument that Biden’s reading of the statute has no limiting principle. He said presidents must demonstrate that their order was designed to enhance the economy and efficiency of federal contracting.

The case is State of Louisiana v. Biden, 5th Cir., No. 22-30019, oral argument 10/3/22.

To contact the reporter on this story: Khorri Atkinson in Washington at katkinson@bloombergindustry.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberindustry.com