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Federal Contractor Vaccine Mandate Update

  • By: Katie Lipp
    Published: December 7, 2021


Biden’s vaccine mandate for federal contractors is temporarily paused in Kentucky, Ohio, and Tennessee. A federal Kentucky court ruled that Biden’s mandate exceeded his authority under federal law and has serious Constitutional concerns. This ruling is temporary but could be made permanent.

Three states sued the Biden administration over the federal contractor vaccine mandate – Kentucky, Ohio, and Tennessee.

Choice quotes are provided below from the Judge’s order, which is attached for your reference:

Biden’s Presidential Power is Limited, and the Vaccine Mandate Exceeds his Power under Federal Law:

  • “Although Congress used its power to delegate procurement authority to the president to promote economy and efficiency federal contracting, this power has its limits.”
  • “…[e]ven for a good cause, including a cause that is intended to slow the spread of Covid-19, Defendants cannot go beyond the authority authorized by Congress.”

“If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency.” (Author Note: the federal statute referenced is the Federal Property and Administrative Services Act (FPASA)).

The judge picked on the Executive Order’s coverage to federal contractors working remotely, which creates an overbroad attempt at forcing vaccines for those working from home. The mandate could violate the Competition in Contracting Act, by failing to provide full and open competition and excluding unvaccinated federal contractors.

“Serious” Constitutional Concerns Raised by the Court:

  • The vaccine mandate likely runs afoul of the nondelegation doctrine, where Congress only delegates lawmaking authority to the President explicitly (in order words, the President doesn’t have the power to make law unless Congress says s/he can). The Court stated: “In this case, the FPASA was enacted to promote an economical and efficient procurement system, and the Defendants cannot point to a single instance when the statute has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors.”
  • “The Court is also concerned that the vaccine mandate intrudes on an area that is traditionally reserved to the States. This principle, which is enshrined in the Tenth Amendment of the Constitution, states that the ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’”

Questions about how vaccine mandates could affect your business? Contact Lipp Law today. See the full opinion here.

Kathryn Megan Lipp

Katie dedicates her practice to employment separation guidance.
Based on her successful employment litigation practice...Read More