A federal judge in Kentucky temporarily blocked the government from enforcing its vaccine mandate for federal contractors in three states on Thursday, saying President Biden exceeded his authority when he ordered agencies to insert the requirement into their contracts for vendors and subcontractors.
Although the preliminary injunction only applies to contracts in Kentucky, Ohio and Tennessee, it is the first substantive decision out of numerous lawsuits making their way through district courts across the country, and other plaintiffs are likely to cite it in their own challenges to contractor mandates in other jurisdictions.
In this case — as in others — the states challenged the mandate on numerous legal grounds, but in a 45-page opinion, Judge Gregory F. Van Tatenhove found only one of them persuasive enough to warrant an injunction at this early stage in the lawsuit — that the president never had the authority to order the mandate in the first place.
The administration had relied on a 1949 law, the Federal Property and Administrative Services Act, to justify the president’s executive order for contractors. That statute gives the president wide latitude to impose procurement polices that promote “economy and efficiency” in federal contracting. But the authority is not unlimited, Judge Tatenhove noted.
“It strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination,” he wrote. “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.”
In order to justify an injunction, the court had to find that the state plantiffs are ultimately likely to win their case on the merits. Nonetheless, the judge emphasized that Tuesday’s decision is not the final word on what are still complex legal questions.
“The court is asked to wrestle with important constitutional values implicated in the midst of a pandemic that lingers. These questions will not be finally resolved in the shadows. Instead, the consideration will continue with the benefit of full briefing and appellate review. But right now, the enforcement of the contract provisions in this case must be paused,” he wrote.
The contractor mandate faces legal challenges filed by Republican attorneys general and other plantiffs in several other district courts, including in Arizona, Texas, Florida, Georgia and Missouri.
Those states, like Kentucky and its co-plaintiffs, argue that the mandate will negatively impact companies within their borders — and impose new burdens on the states themselves, since state governments have numerous contracts of their own with the federal government. Florida has also argued that the mandate forces its agencies to choose between violating their contracts or violating state law, since that state now has its own statute prohibiting vaccine mandates.
And the states have commonly used the same argument that proved initially successful in the Kentucky suit: that FPASA doesn’t grant the White House the legal power to mandate contractor vaccinations.
Attorneys for the government have consistently argued that it does. In the Kentucky case, they argued there are longstanding precedents, dating to the 1960s, that give the executive an extremely wide berth in using the statute.
“Courts have concluded, for example, that FPASA authorizes the president to require government contractors to comply with wage and price controls, to post notices at all of their facilities informing employees that they cannot be forced to join a union or to pay mandatory dues for costs unrelated to representational activities, and to require contractors to confirm employee’s immigration status through e-Verify,” Justice Department attorneys wrote.
The government argued that all the president needs to do is provide an explanation for how the procurement changes he’s directing are “rational and reasonable” — in this case, that the vaccine mandate will reduce worker absenteeism due to COVID illnesses and reduce labor costs for federal contracts.
But the judge found the mandate looks a lot more like a public health regulation than a procurement policy, especially since the mandate also applies to contractor employees who work entirely from home.
“Under the same logic employed by the defendants regarding the vaccine mandate, what would stop FPASA from being used to permit federal agencies to refuse to contract with contractors and subcontractors who employ individuals over a certain body mass index for the sake of economy and efficiency during the pandemic? After all, the CDC has declared that obesity worsens the outcomes from COVID-19,” he wrote. “Why couldn’t the federal government refuse to contract with contractors and subcontractors who work in crowded indoor office spaces or choose to engage in indoor activities where COVID-19 is more likely to spread?”
Judge Tatenhove explicitly wrestled with the question of whether he should issue a broader injunction that would have blocked the mandate in all 50 states and U.S. territories. Ultimately, he decided to block it only in the states who had sued in his court, and let the other cases “percolate” through other U.S. district and appellate courts.
“Not only are [nationwide] injunctions impracticable, they ‘force judges into making rushed, high-stakes, low-information decisions,’” he wrote, quoting a 2020 opinion by Supreme Court Justice Neil Gorsuch. “Careful review by multiple district and circuit courts, on the other hand, allows the Supreme Court the benefit of thoughtful and, at times, competing outcomes.”