The Court of Appeal deals a new blow to the contractor’s vaccine mandate

The Biden administration received another judicial reprimand on Wednesday for its attempt to enforce a COVID vaccine warrant for employees of federal contractors. The Sixth United States Court of Appeals, which was the first federal appellate court to consider whether the contractor’s tenure is legal, expressed a firm belief that it is not.

On the key question of whether the president has the legal authority to use government procurement law to mandate vaccines for contract labor, the three-judge panel voted 2-1 to confirm a ruling by a Kentucky federal judge who found the Biden administration was overstepping its bounds.

In that November ruling, Judge Gregory F. Van Tatenhove concluded that the Federal Property and Administrative Services Act of 1949, a law that gives the President the power to promote “economy and efficiency” in federal contracts, could not be used to justify a vaccine requirement. . In that decision, the lower court blocked warrants in Kentucky, Ohio, and Tennessee.

Although this decision was the first preliminary injunction on the contractor’s tenure, similar cases are pending in the court system in other districts and appellate courts. So far, none have sided with the Biden administration.

Lawyers for the administration argued that the law gives presidents wide latitude to set procurement policies and that the vaccine mandate is justified because it would prevent disease among contractors the government depends on.

Wednesday’s majority generally agreed with the Kentucky court, saying the procurement law couldn’t be used to implement public health measures.

“If the president can order medical interventions in the name of reducing absenteeism, what is the logical stopping point of that power?” the court asked in Wednesday’s notice. “Even vaccinated employees can contract the flu (or COVID-19) at family gatherings, concerts, sporting events, etc. … Such behavior outside of work may very well threaten to cause absenteeism in the workplace. job. So why, if the government’s interpretation is correct, doesn’t property law give de facto policing power to the president to dictate the terms and conditions of one-fifth of the life of our workforce? ‘work ? The government has never considered the implications of its position or proposed any limiting principle to allay our concerns. “

Dissenting Judge R. Guy Cole, Jr., however, agreed with the government’s position that government procurement law authorized the warrant. He said he would have approved the Biden administration’s request to stay Judge Tatenhove’s injunction and let the warrant run.

“The health and safety of the government workforce in the midst of a worsening global pandemic has direct and tangible effects on the economy and, by extension, on the government’s ability to procure and to provide services, ”he wrote. “The federal government has clearly demonstrated irreparable harm in the form of significant productivity losses not only due to time off and health care costs for workers who are sick, quarantined and unable to work due to COVID-19, but also scheduling delays and reduced performance quality. – according to his estimate, about $ 2 billion per month that the injunction is in place. “

But even if the government had won its case in the Sixth Circuit, such a move probably wouldn’t have had much of an impact in the short term.

That’s because a separate federal district court decision, made by a Georgia judge, temporarily blocked the contractor’s vaccine mandate nationwide. This opinion also concluded that the president had exceeded his limits under the law on public procurement. The government also appealed the decision, and the case is now before the 11e Circuit Court of Appeal.

This appeals court last month rejected an emergency justice ministry request to immediately overturn the national injunction. But the judges also agreed to a “fast-track” decision-making process once they considered the full written submissions and oral arguments of the government and the plaintiffs.

These parties include elected officials from the state of Georgia and six other states, as well as a professional construction association, the Associated Builders and Contractors (ABC). There, the district court ruled that a nationwide injunction was warranted because ABC has members across the country, and the temporary mandate freeze in all 50 states was the only way to address the issue. what he considered to be an “extreme economic burden” for these sellers.

The attempt to use the supply system to increase vaccination rates is just one of many vaccination warrants the Biden administration has issued.

On Friday, the Supreme Court plans to hear arguments in several cases that have challenged the administration’s orders, via the Occupational Health and Safety Administration and the Centers for Medicare and Medicaid Services, to require vaccinations at workplaces and private sector health facilities. The lower courts also found these warrants to be legally invalid.

So far, the administration has fared better in defending its vaccine mandates for federal civilian employees and members of the military.

The courts have generally sided with the government in carrying out these warrants. An Oklahoma judge, for example, ruled last week that the state’s lawsuit to exempt its National Guard members from the military vaccine warrant was “baseless.”

In this case, Judge Stephen Friot urged the Department of Defense to give members of the Oklahoma National Guard more time to be vaccinated, but only because they had received, in his opinion, advice extremely poor on the part of heads of state on whether they could legally avoid the DoD. mandate.

“The court strongly urges the defendants to take everything into consideration to provide a brief grace period to facilitate rapid compliance with the vaccination mandate before taking any action directly or indirectly that would end the military career of any member of Oklahoma Guard, ”he wrote.

Although no court has completely struck down federal employee warrants, earlier this week a federal judge banned the Navy from enforcing it against 35 sailors in the special operations community, all of whom have asked for religious exemptions. .

Justice Reed O’Connor said the Navy’s process for reviewing these exemptions was pure “theater,” designed from the outset to deny anyone who requested it. Because of this, he found the Navy’s process to be a violation of their rights under the constitution and the Restoration of Religious Freedom Act.

“The Navy has not granted religious exemption to any vaccine in recent memory. It just stamps every refusal, ”he wrote. “Members of the Navy in this case seek to defend the very freedoms for which they have sacrificed so much to protect. The COVID-19 pandemic does not give the government any license to abrogate these freedoms. There is no COVID-19 exception to the First Amendment. There is no military exclusion from our constitution.

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