In a majority opinion, a panel of judges for the U.S. Court of Appeals for the Fifth Circuit found President Joe Biden overstepped his authority by using the Procurement Act to require virtually all federal contract workers be vaccinated against COVID-19.
“The President asks this Court to ratify an exercise of proprietary authority that would permit him to unilaterally impose a healthcare decision on one-fifth of all employees in the United States,” according to the majority opinion drafted by Circuit Judge Kurt Engelhardt. “We decline to do so.”
The 43-page ruling, which includes a dissenting opinion, was posted online Dec. 19, in the case brought by Louisiana, Indiana and Mississippi [Louisiana versus Biden]. The states’ case concerns whether the federal government may place COVID-19 mandates in its contracts with third parties.
While it covers many of the same issues, the case is separate from Feds for Medical Freedom versus Biden, in which the entire New Orleans-based Fifth Circuit heard oral arguments in September.
The December ruling in the states’ case keeps in place an injunction against the contractor mandate that was issued initially by a federal district court judge for the Western District of Louisiana. The states said among other things that Executive Order 14042 required contractors to enact COVID-19 provisions into government contracts without notice-and-comment.
In the ruling, the Fifth Circuit panel expressed concern that allowing a September 2021 executive order to stand could grant the White House unchecked power to write policy through the Procurement Act.
“Hypothetically, the President could mandate that all employees of federal contractors reduce their BMI [body mass index] below a certain number on the theory that obesity is a primary contributor to unhealthiness and absenteeism,” the majority held. “Under the Government’s theory of the case, the only practical limit on presidential authority in this sphere is the executive’s ability to tie policy priorities to a notion of economy or efficiency.”
While Department of Justice lawyers argued “we are facing a ‘once-in-a-century’ pandemic … The Constitution is not abrogated in a pandemic,” the Fifth Circuit said.
Citing a U.S. Supreme Court decision rejecting a proposed Occupational Safety and Health Administration COVID vaccination mandate for companies with 100 or more employees, the Fifth Circuit said this was “no ‘everyday exercise of federal power.’”
