Seven states and a national trade association filed legal briefs this week urging the Eleventh U.S. Circuit Court of Appeals to leave in place a Georgia federal judge’s national order blocking the Joe Biden administration from enforcing its COVID-19 vaccination mandate for contractors.
The legal arguments were filed Tuesday by Associated Builders and Contractors (ABC) as well as a group of states that includes Alabama, Georgia, Idaho, Kansas, South Carolina, Utah and West Virginia.
Both groups want the Atlanta-based 11th Circuit to leave in place a national restraining order against enforcement of the COVID-19 vaccination mandate that grew out of President Biden’s September Executive Order 14042.
The states argue: “The efficacy and value of COVID-19 vaccines are not at issue; instead, the question is “Who decides?” Both the states and the contractor group argue the Biden administration lacks authority under the Procurement Act to mandate vaccination of federal contract workers who don’t qualify for medical or religious exemptions.
“The President’s authority, even as purchaser-in-chief, is not without limits,” said ABC, an association that embraces a free market “merit shop” approach to contracting, said in its brief. The administration is using procurement regulation as a backdoor to enact a public health measure “not reasonably related to promoting economy and efficiency in contracting.”
Since Biden “voiced his displeasure with the country’s vaccination rate in September,” his administration pored over federal regulations seeking to find a “work around” for a national mandate forcing more people to take the COVID-19 inoculation, according to ABC.
U.S. District Judge Stan Baker of Georgia temporarily halted enforcement of the mandate in December. The Department of Justice promptly appealed the case to the 11th Circuit, which will hear oral arguments on the matter April 8.
Government lawyers filed their own brief last month citing “massive economic disruptions” in the public and private sector, including more than a half-billion-dollars the Department of Energy distributed to federal contractors who stayed home from work early in the pandemic.
The states argue many state entities are involved with federal contracts in one way or another.
“Three research universities in Georgia generated just shy of $737 million in revenue from federal contracts in 2021,” according to the brief. It cites Georgia Tech, the University of Georgia and Augusta University, which happens to be located next to the South Carolina state line and the DOE’s Savannah River Site.
The state brief claims that anywhere from 20% to 50% of the employees affected by the federal mandate at those universities have not filed vaccination paperwork with their employers. The states also claim the administration should have conducted notice and comment before enacting the mandate.
The DOE Office of Environmental Management has said more than 90% of its federal and contractor workforce has been vaccinated against COVID-19, which as of Thursday had claimed the lives of about 915,000 Americans, according to online data from Johns Hopkins University. Roughly 65% of the U.S. population is fully vaccinated.
