Between November 30, 2021 and December 22, 2021, four federal courts enjoined President Biden’s order that would have required federal contractors to have all their employees vaccinated against COVID-19.  One of the injunctions, issued by a Georgia federal court, applies to all 50 states, including Texas.  While further appeals are likely, for the time being, the vaccination requirement is not enforceable.

The Seminal Questions

The federal courts that have addressed the vaccine mandate have grappled with three very thorny questions:

• • Did President Biden have the authority to issue the mandate under a procurement statute?
  • Did President Biden usurp Congress’ role in issuing the mandate?
  • Does the mandate infringe on states’ rights under the US Constitution?

Relatively uniformly, the federal courts have held that the States would likely prevail in finding that President Biden exceeded his authority and violated the US Constitution.

Exceeding the Procurement Statute

The first and largest challenge to the federal contractor vaccination mandate has been whether President Biden had authority to issue the mandate through a procurement statute, the Federal Property and Administrative Services Act or FPASA. The FPASA was enacted in 1949 for the purpose of establishing a uniform system for the federal government to procure goods and services.  Its stated intent was to give the president authority over “larger management and administrative issues” to achieve a flexible management system in pursuit of “economy” and “efficiency”.

Using two Executive Orders, President Biden created a pathway for the federal contractor vaccine mandate.  President Biden signed Executive Order 13991 to create the Safer Federal Workforce Task Force.  The Task Force was vested with responsibility to provide ongoing guidance on the operation of the federal government during the COVID-19 pandemic.

Expressly relying on FPASA, President Biden then signed Executive Order 14042, requiring the Task Force to issue guidance by September 24, 2021 about “adequate COVID-19 safeguards” for federal contractors and subcontractors. It also directed the Federal Acquisition Regulatory (FAR) Council to issue a contract clause that would require compliance with the Task Force’s guidance.

The Task Force subsequently issued a requirement that all “covered contractors” be fully vaccinated unless legally entitled to an accommodation. The FAR Council issued further clarification in 52.223-99 requiring that federal contractors adhere to the Task Force’s guidance, including guidance conveyed through FAQs.

All four federal courts—in Georgia, Florida, Kentucky and Missouri—that have enjoined the federal contractor vaccine mandate have held that President Biden exceeded the powers given to him the FPASA.  The courts have held that Executive Order 14042 seeks to regulate public health, something far afield from “management and administrative issues” in the procurement process.  Since Congress never delegated the power to broadly regulate public health to the president, President Biden’s Order exceeded his powers.

Usurping Congress’ Role

The Kentucky federal court also investigated whether the federal contractor vaccine mandate violated the non-delegation clause of the US Constitution (Art. 1, Sec. 1).  The non-delegation clause essentially states that Congress may not delegate its legislative power to the president to make whatever laws she thinks may be needed or advisable.  Instead, Congress must give an “intelligible principle to guide” the president’s use of power.  The court found no evidence that Congress intended to give wide-sweeping public health powers to the president.

Infringing on States’ Rights

All four federal courts also looked at whether Executive Order 14042 violated the 10^th Amendment to the US Constitution. That Amendment states that powers not delegated to the federal government in the US Constitution are reserved to the States. One of the powers the States retain is to provide for the public health, safety and morals of the States’ populations.  None of the provisions of the US Constitution authorizes Congress to intrude into a state’s authority over public health.

The Florida lawsuit painted the issue in stark relief.  The Florida legislature passed a statute which Governor DeSantis signed into law banning vaccination requirements by public and private employers. Florida’s actions—within its power to regulate public health—set up the 10^th Amendment conflict with Executive Order 14042.

The Net Result

At the present time, the federal courts have enjoined enforcement of the federal contractor vaccine mandate as follows.

• • Georgia federal court: Enforcement enjoined nationwide
  • Florida federal court: Enforcement enjoined in Florida
  • Missouri federal court: Enforcement enjoined in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota and Wyoming
  • Kentucky federal court: Enforcement enjoined in Kentucky, Ohio, and Tennessee

It is likely that the Biden Administration will continue fighting and appealing the injunctions.  Until a court rules, however, that Executive Order 14042 and the proposed FAR contract clause are constitutional, they are not enforceable.

When determining your constitutional, statutory or contractual rights, it is prudent to consult with counsel.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have.  Contact us at info@gstexlaw.com.

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