On May 9, 2023, President Biden issued a highly anticipated Executive Order formally revoking the federal contractor COVID-19 vaccine mandate (Executive Order 14042) and the federal employee COVID-19 vaccine mandate (Executive Order 14043). The decision marks a significant shift in the administration's earlier stance on vaccine mandates in the wake of the winding down of the national COVID-19 emergency. It also affirms the Safer Federal Workforce Task Force's recent announcement that the federal contractor vaccine mandate would soon come to an end.
Effective May 12, 2023, the new Executive Order advises all agencies to stop enforcing any policies adopted to implement Executive Order 14042 or Executive Order 14043 and to rescind any remaining policies in accordance with applicable law. The Safer Federal Workforce Task Force has also advised agencies not to take any steps to come into compliance with any previously issued vaccine mandate guidance or enforce any contract clauses implementing Executive Order 14042 against federal contractors and subcontractors.
Long-Lasting Effects of the Federal Contractor Vaccine Mandate
While most federal contractors and subcontractors will not feel any immediate impact from the new Executive Order, the long-lasting impacts of the litigation surrounding the federal contractor vaccine mandate will remain, including some uncertainties with respect to the scope of the President's authority under the Federal Property and Administrative Services Act (commonly known as the Procurement Act or Property Act).
The mandate has stirred up a lot of litigation and left the country with a circuit split over its enforceability—the Fifth, Sixth, and Eleventh Circuits have all upheld the lower courts' preliminary injunction of Executive Order 14042, as we reported on Fifth Circuit Affirms Preliminary Injunction of Contractor Vaccine Mandate and Sixth Circuit Follows Suit in Affirming Preliminary Injunction of Contractor Vaccine Mandate. In contrast, the Ninth Circuit has found that the President does have the authority to impose health-related requirements on federal contractors under the Procurement Act.
The scope of the President's authority under the Procurement Act was a major point of contention in the litigation surrounding the federal contractor vaccine mandate. The Fifth and Eleventh Circuits concluded that the "Major Questions Doctrine"—the notion that "Congress [must] speak clearly when authorizing an agency to exercise powers of vast economic and political significance"—limits the President's otherwise broad authority under the Procurement Act, precluding enforcement of the contractor vaccine mandate. Similarly, the Sixth Circuit concluded that the President exceeded his authority in issuing Executive Order 14042.
In contrast, the Ninth Circuit sidestepped the Major Questions Doctrine and found that Congress had delegated the authority to the President to impose such requirements on federal contractors. That decision is in line with the long-held precedent of the D.C. Circuit's 1979 decision in AFL-CIO v. Kahn, which held that the President has broad discretionary authority to issue executive orders concerning federal contractors, provided there is a sufficient nexus between the executive order and the Procurement Act's goals of promoting economy and efficiency in federal procurement.
What Happens Now?
Absent revocation of the mandate, the Supreme Court likely would have resolved the circuit split and, in doing so, would have provided federal contractors with greater clarity on the scope of the President's authority under the Procurement Act. But revocation of the mandate likely means the litigation is now moot. Because that mootness was caused by the defendants' unilateral action in revoking the mandate, plaintiffs in the Ninth Circuit case may be able to have that court's decision vacated (called a "Munsingwear vacatur"). That would eliminate the circuit split and likely preclude the Supreme Court's review of the issue.
With the rescission of the federal contractor vaccine mandate, it is unclear what implications the federal contractor vaccine mandate litigation might have on future administrations' efforts to impose requirements that are not purely commercial on federal contractors. Federal contractors may interpret the circuit courts' decisions to limit the actions a President may take with respect to federal procurement, which is a departure from the legal landscape initiated by the D.C. Circuit's seminal decision in AFL-CIO v. Kahn. Whatever the long-term legal ramifications may be, the Biden Administration's decision to revoke the dual vaccine mandates closes the door on an issue that has left contractors looking for certainty since the Fall of 2021.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Morrison & Foerster LLP. All rights reserved
