State challenges Biden – again – on COVID-19 vaccine mandate for contractors

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Arizona had successfully challenged a Biden administration order that required federal contractors to be vaccinated for COVID-19, but an appeals court said this month that President Joe Biden had the authority to order the shots. State lawmakers have appealed the latest ruling to the Supreme Court. (Photo by NIAID/Creative Commons)

WASHINGTON – Arizona legislative leaders have asked the Supreme Court to reverse a lower court’s ruling that said President Joe Biden had the authority to require COVID-19 vaccinations for workers on federal contracts in Arizona.

In an emergency petition filed Tuesday, Arizona House and Senate and the Arizona Chamber of Commerce said the April 19 ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals would allow what they called an “unprecedented claim of presidential authority.”

The circuit court ruling also runs counter to findings in a number of other federal courts around the country, which had blocked the 2021 vaccination mandate. State officials said the high court should take up the case to resolve the conflict between circuits.

It was the latest twist in a case that began last year, when a federal district court blocked the mandate in Arizona, saying it exceeded the limits of the Procurement Act under which it was issued.

But the 9th Circuit panel said the Procurement Act, which is meant to “ensure economy and efficiency” in federal contracting, did allow Biden to issue the mandate, particularly as he faced “a pandemic the likes of which the world has not seen in more than a century.”

“The President, when faced with an unprecedented pandemic that has claimed millions of lives and caused billions of dollars in productivity losses, issued a Mandate requiring that certain employees of contractors working on federal projects be vaccinated against the disease that caused the pandemic,” Circuit Judge Mark J. Bennett wrote for the court.

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“The president appropriately relied on a statute that gave him the necessary flexibility and broad-ranging authority to ensure economy and efficiency in federal procurement and contracting,” Bennett wrote.

It is unclear what practical impact the rulings will have, as the administration backed down on enforcement of the executive order last year in the face of multiple legal challenges.

The lawsuit was first brought by former Arizona Attorney General Mark Brnovich, who sued in 2021 after Biden signed several executive orders requiring COVID-19 vaccinations for specific groups, including federal employees and federal contractors.

Brnovich argued that those mandates were among “the greatest infringements upon individual liberties, principles of federalism, and separation of powers ever attempted by any administration in the history of our Republic.” He claimed that the orders violated the Procurement Act, due process and states’ rights, among other charges.

Brnovich said the state would be harmed by the contractor mandate, noting that a variety of state agencies – its universities and retirement system, along with its departments of Transportation, Corrections and Health Services – all hold federal contracts.

U.S. District Judge Michael T. Liburdi rejected Arizona’s challenge to the order requiring vaccination of federal employees. But he largely agreed with Brnovich on the contractor mandate, which required vaccinations for any federal contractor unless they received a medical or religious exemption.

Liburdi said the president’s authority under the Procurement Act “is not so broad” and that allowing the executive order to stand would invite future abuse of the act under the guise of economic efficiency.

“As long as the federal government could articulate some connection – no matter how tenuous – between the enacted policy and the broad goals of achieving economy and efficiency in federal procurement, the policy would be consistent with the statute,” Liburdi wrote in his January 2022 ruling.

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He posed a hypothetical under which a president could “issue an executive order requiring all federal contractor employees to refrain from consuming soda or eating fast food” using the justification that those habits led to obesity and diabetes, which would affect workplace productivity.

Liburdi said that while the administration was “of course correct that slowing the spread of the virus is in the public’s interest, achieving that objective through the unlawful means here is not.” In February 2022 he ordered a permanent injunction on the vaccine mandate for any contractor based or working in Arizona.

When Arizona Attorney General Kris Mayes took office this year, replacing Brnovich, she took up the case but dropped many of the former attorney general’s charges, arguing only that the orders violated the Procurement Act. At that point, the state legislature and the Arizona Chamber of Commerce joined the case to argue the “abandoned” parts of Brnovich’s case.

But none of those arguments appeared to sway the circuit court, which said the Procurement Act is the appropriate vehicle because the contractor mandate “is related to the government’s proprietary interest here: efficient and economic procurement of services.”

The circuit court ruling noted that federal courts in more than a dozen states have ruled otherwise, raising “alarms about how the federal government has never sought, under the authority of the Procurement Act, to regulate the health decisions of American workers.” But that wrongly “equates inactivity with forbidden activity,” wrote Bennett, who said the act has been cited by presidents in executive orders on affirmative action, sick leave, wage and price guidelines and more.

As for Liburdi’s reasoning on the potential for future abuse of the Procurement Act, Bennett said the court “reject(s) these invitations to adjudicate slippery-slope hypotheticals.”

“While a future President might try to analogize soda consumption to a worldwide pandemic in issuing an Executive Order under the Procurement Act, we will leave the consideration of that hypothetical Executive Order to a future court,” the 9th Circuit wrote in its opinion.

Alexis Waiss uh-LEK-sis wice (she/her/hers)
News Reporter, Washington, D.C.

Alexis Waiss expects to graduate in May 2024 with a bachelor’s degree in journalism and a minor in social welfare. Waiss has reported for The State Press and PolitiFact at the Poynter Institute.