As we have discussed at length on this blog, for more than a year federal courts have repeatedly held that, for various reasons, President Biden lacked the authority to mandate by executive order that government contractors can force their employees to be vaccinated against COVID-19 as a condition of contracting with the federal government. Even when the government claimed that the vaccines would prevent people from catching or spreading COVID-19, at which time there was arguably a medical basis for a mandate, it was clear that there was no statutory or constitutional basis for the authority asserted in Executive Order 14042.
Despite the multiple defeats, the Biden administration continues to suggest that the Executive Order is valid. In October, after the 11th Circuit narrowed a nationwide injunction of the vaccine mandate, the government indicated that it is considering enforcing the vaccine mandate against contractors that do not fall under the scope of any of the six injunctions currently in place. And the Department of Justice (DOJ) continues to defend the executive action in appeals across the country.
On December 19, 2022, another Circuit Court held that the president had overreached. In a split decision, the Fifth Circuit – which was considering the DOJ’s appeal of an injunction granted to Louisiana, Indiana, and Mississippi – concluded that the states were likely to succeed in their argument that the Federal Property and Administrative Services Act (FPASA) did not authorize the president to force government contractor employees – roughly 20% of the U.S. workforce – to get vaccinated.
The court was not persuaded by the DOJ’s argument that FPASA, a law that authorizes the president to prescribe policies and directives that the president considers necessary to provide the federal government with an economical and efficient procurement system, authorizes any presidential action that had a “close nexus” to economy and efficiency in federal contracting. The court also found that the vaccination mandate, unlike prior orders issued under FPASA, purported to govern the conduct of employees, not employers. Untimely, the government found no such expansion of presidential authority was permissible in the absence of a clear statement by Congress.
It is unclear what governmental interest would be served by seeking a review of this decision by the entire Fifth Circuit, the Supreme Court or by continuing to litigate the multiple other appeals. Given its decision this past January striking down a broad vaccine mandate that the Occupational Safety and Health Administration attempted to impose on employers with more than 100 employees, it is doubtful that the Supreme Court would agree with the DOJ’s broad reading of FPASA.
That said, further clarification regarding the bounds of FPASA would be useful for the government contracting community. For decades, presidents have relied on the FPASA when imposing policies on government contractors who have no chance of passing Congress. Setting aside whether those government-contractor-specific measures – which include higher minimum wages, sick leave, or mandatory COVID-19 vaccinations – are good or bad policy, the claim that the president has the sole authority to use 20% of the U.S. economy as a test bed for policies that cannot pass Congress has little support in American law.
Further, there is a strong argument that the more presidential “social policy-oriented procurement orders” with which government contractors are forced to comply, the less economical and efficient the government contracting marketplace becomes. Of course, that is precisely the opposite of what FPASA requires.