On Nov. 30, 2021, a judge in the Eastern District of Kentucky issued a preliminary injunction preventing the vaccine mandate from being enforced on federal contractors and subcontractors in Kentucky, Ohio, and Tennessee.
The case is Commonwealth of Kentucky, et al. v. Biden, et al. In reaching this decision, the court framed the question as whether the President could issue an executive order pursuant to congressionally delegated authority for the administration of the federal procurement of goods and services, to impose vaccine requirements on employees of federal contractors and subcontractors. The court concluded that "[i]n all likelihood, the answer to that question is no."
The Executive Order mandating the vaccines was issued pursuant to the Federal Property and Administrative Services Act (FPASA). This law delegates congressional authority to the President to manage federal procurement. The delegation of authority is broad, but it is not absolute.
The government argued there is a nexus between the vaccine mandate, the economy, and efficiency in federal contracting because limiting the spread of COVID-19 will decrease worker absence, decrease labor costs, and improve efficiency at work sites.
The court found that FPASA's goal is to create an economical and efficient system for procurement and supply. In consideration of that finding, the court ruled any nexus between the vaccine mandate and economy and efficiency in federal contracting was not close enough to be issued under FPASA. The court concluded it would "strain[ ] credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination." The court also held that - at this early stage in litigation - the mandate likely precludes full and open competition, a requirement of the Competition in Contracting Act.
The court further noted that such a mandate may violate the nondelegation doctrine, which prevents Congress from transferring legislative power to another branch of government. In order to delegate such powers, Congress must supply an intelligible principle to guide the delegee's - in this case, the President - use of discretion. The court referenced the recent Fifth Circuit decision regarding the OSHA mandate's violation of the nondelegation doctrine and noted this issue is ripe for appellate courts to further develop.
On other issues, the court ruled for the government, finding it likely followed proper administrative procedures in issuing the mandate, and that the government did not run afoul of the Administrative Procedure Act.
The scope of the court's injunction is limited to preventing enforcement of the vaccine mandate for federal contractors and subcontractors on all covered contracts in the plaintiff states of Kentucky, Ohio, and Tennessee. Contractors and subcontractors with covered contracts in those states are not subject to enforcement of the vaccine mandate for now.
This is a rapidly developing area. Taft's Government Contracts group will continue to monitor this situation. Stay tuned for further developments.
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