Health Law

'Major questions' doctrine applies to presidential authority, 5th Circuit says in federal contractor vaccine case

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President Joe Biden didn’t have authority under the Procurement Act of 1949 to require federal contractors to mandate COVID-19 vaccines for their employees, a federal appeals court has ruled.

The 5th U.S. Circuit Court of Appeals at New Orleans on Monday upheld a preliminary injunction that barred the government from imposing the requirement on three states that challenged Biden’s order—Louisiana, Indiana and Mississippi. Those states are themselves federal contractors.

The Procurement Act is more formally known as Federal Property and Administrative Services Act of 1949, which authorizes a president to enact policies and directives necessary to carry out the law. Those policies “must be consistent with this subtitle,” which has a stated goal of providing the federal government “with an economical and efficient system” for procurement.

The government justified the vaccine policy by stating that it will improve economy and efficiency by reducing absenteeism and decreasing labor costs for contractors.

Courts have generally adopted a lenient standard when considering the scope of presidential authority under the Procurement Act, the 5th Circuit said in the Dec. 19 opinion by Judge Kurt D. Engelhardt. That standard requires a “sufficiently close nexus” between a presidential order and the values of economy and efficiency.

But the “close nexus” test combined with deference to presidential determinations leave “the president with nearly unlimited authority to introduce requirements into federal contracts,” the 5th Circuit said.

“Hypothetically, the president could mandate that all employees of federal contractors reduce their BMI below a certain number on the theory that obesity is a primary contributor to unhealthiness and absenteeism,” the appeals court said.

The 5th Circuit said a limit on a president’s procurement authority is the “major questions” doctrine, which requires Congress to speak clearly when authorizing an agency to exercise powers of “vast economic and political significance.” The doctrine should apply to delegations of power to the president, as well as to federal agencies, the appeals court said in footnote 40.

“The Supreme Court has never explicitly limited the major questions doctrine to delegations to agencies rather than to the president,” the appeals court said in the footnote.

The U.S. Supreme Court applied the major questions doctrine in June, when it ruled that the Environmental Protection Agency didn’t have broad power to regulate climate change under the Clean Air Act.

Erwin Chemerinsky, dean of the University of California at Berkeley School of Law and a frequent ABA Journal contributor, had described the doctrine as “relatively new” when he previewed the climate-change case in March.

Engelhardt’s opinion in Louisiana v. Biden was joined by Judge Don R. Willett. Judge James E. Graves Jr. dissented.

Reuters and are among the publications reporting on the 5th Circuit decision.

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