Today’s decision by the U.S Court of Appeals, Sixth Circuit was split. It rejected the Biden Administration’s request to suspend a lower court order that would have prohibited the enforcement of a COVID-19 vaccine requirement for federal contractors working in Ohio and Kentucky. The court was represented by Judge Bush. Commonwealth of Kentucky v. BidenJudge Suhrenreich joined Judge Cole. Judge Cole, who recently stated his intention to assume senior status after the confirmation of his successor’s appointment, voted against.
Here’s how Judge Bush sums up his views:
Congress approved the Federal Property and Administrative Services Act (the “Property Act”) in 1949 to allow the Federal Government to purchase goods and services at an economically efficient price. 40 U.S.C. § 101. The Property Act has a clear purpose. Who doesn’t wish for the government to become more efficient and economically sound? This laudable directive from the legislative branch, which was in force for 70 years, was recently revised by the executive. The Safer Federal Workforce Task Force published a guidance in November 2021 under the pretext of the Act. It required federal contractors who were “covered contract” employees to comply with the “Guidance”.[s]The federal government will fully immunize all employees against COVID-19. The directive will affect at least one-fifth, if not more, of our workforce. So, an act that established an efficient “system for property management,” S. Rep.1413 at 1 (1948), became a unique source of federal authority to regulate private medical decisions made by millions of Americans.
Three states, Ohio, Kentucky and Tennessee, as well as two Ohio sheriff’s offices, filed suits in response. The three states alleged, collectively, that no provision of the Property Act authorized the contractor mandate and that other federal statutes prohibit the contractor mandate. They also claimed that the intrusion into traditional state prerogatives raised serious constitutional concerns, both under the federalism principles, as well the Tenth Amendment. The district court agreed. It stopped enforcement of contractor mandates in Ohio, Kentucky, Tennessee. It denied further motions by federal-government defendants for stay of injunction. We now receive the same request from government. Because the government has not made all the required showings to get a stay we deny this relief.
The argument that the Biden Administration has overstepped federal contractor authority is a valid one, as I have noted. Problem is, most caselaw that interprets the federal Property Act adopts a broad and permissive view of executive branch authority. Although the relevant cases are from lower courts so they don’t control, I doubt that Judge Bush can distinguish them as clearly. D.C. might seem more appealing to me. Circuit decisions such as Kahn And Chao Insofar they permit the executive branch transform a procurement statute into a strong lever to regulate large portions of the country’s economy, these are clearly wrong. You should also be aware that the aforementioned are not legal. ChaoThe federal government required federal contractors to tell their workers about their rights to not join or pay dues. In this case, conservatives favored a wide reading of the Property Act. Liberals disagreed.
Judge Cole abstained from the panel decision. His disapproval included both the majority’s interpretation of Property Act as well as panel’s conclusion that these claims could have been brought by state plaintiffs. His brief dissent begins:
The majority of the respondents disagree that the two sheriff’s offices and states have stood. Also, I disagree with the assertion that President Obama “reimagined” Federal Property and Administrative Services Act (“Property Act”) in order to perform the actions contemplated under Executive Order No. 14042. Maj. Op. 2. Recognizing that the Eleventh Circuit declined to stop the injunction issued by the National Injunction Court, I am aware. Georgia v. Biden, — F. Supp. 3d —, No. 2:31-CV-163, 2021 Wl 5779939, S.D. Ga. Dec. 7, 2021). Georgia v. Biden, No. Slip op. 21-14269 at 1 (11th Cir. Dec. 17, 2021). Even though I disagree with the verdict, the government still has made an “strong showing” that they will win on the merits. They have also shown that they will sustain irreparable injury without the need for a stay. Please refer to Nken v. Holder, 556 U.S. 418, 426 (2009). This is why I am dissident.
Kentucky v. BidenOne of the many challenges to the federal contractor requirement is this one. This mandate is not to confuse with the CMS mandates for Medicare and Medicaid providers as well as the OSHA vaccine or-test ETS. This case was decided by the lower court. However, in one of the other cases, a court of district entered a nationwide order against federal contractors being required to get vaccine. Although the U.S. Court of Appeals of the Eleventh Circuit declined to block the order, it ordered that expedited briefing be conducted on the merits.