A federal judge has issued a nationwide ban on President Biden’s COVID-19 vaccine mandate for federal contractors and subcontractors. On Dec. 7, 2021, United States District Judge R. Stan Baker of the Southern District of Georgia granted a preliminary injunction preventing the federal contractor COVID-19 vaccine mandate from taking effect nationwide because President Biden likely exceeded his procurement power under the Federal Property and Administrative Services Act. Judge Baker acknowledged in his order the “tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe” but ultimately concluded that President Biden did not have the authority to implement the COVID-19 vaccine mandate for federal contractors and subcontractors.
Judge: Biden Had No Clear Authority to Issue Federal Contractor Executive Order
President Biden explicitly relied on his authority under the Federal Property and Administrative Services Act to issue Executive Order 14042, which directed the Safer Federal Workforce Task Force to promulgate COVID-19 safety measures and guidance for federal contractors and subcontractors. However, Judge Baker is “unconvinced” that President Biden had the authority to do so because Congress did not clearly authorize the President to issue the directives in the Executive Order. It is well-established that when authorizing the exercise of powers of vast economic and political significance, Congress must be clear in its authorization. Judge Baker emphasizes that Executive Order 14042 has vast economic and political significance, but that President Biden did not have clear authority under the Federal Property and Administrative Services Act to issue the directives in the Executive Order.
No COVID-19 Testing Alternatives Included in Guidance for Federal Contractors
Pursuant to Executive Order 14042, the Safer Federal Workforce Task Force issued its guidance on Sept. 24, 2021. The guidance includes a vaccine mandate for all covered federal contractors and subcontractors and does not offer any COVID-19 testing alternatives. By Jan. 4, 2022, employees under covered contracts and subcontracts must have received the second dose of either the Moderna or Pfizer-BioNTech vaccine or the single dose of the Johnson & Johnson vaccine.
Judge Baker’s Ruling Follows Other Similar Ruling for Federal Contractors and Healthcare Workers
This preliminary injunction order comes just one week after a federal judge blocked the COVID-19 vaccine mandate for federal contractors and subcontractors in Ohio, Kentucky and Tennessee. United States District Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky similarly held that Executive Order 14042 exceeded President Biden’s federal procurement authority. This order also follows the nationwide block of the Centers for Medicare and Medicaid Services (CMS) vaccine mandate for healthcare workers by a federal judge in the Western District of Louisiana last week.
KJK will continue to closely monitor the status of the vaccine mandates and promptly report on any significant changes or updates. For more information or to discuss further, please contact Rob Gilmore at rsg@kjk.com or 216.736.7240.