Biden Rejected in Bid to Lift Block on Contractor Shot Order (1)

A federal appeals court in Cincinnati denied President Joe Biden’s request to lift a judge’s order blocking enforcement of a Covid-19 vaccine mandate for federal contractors in three states, while it weighs a legal challenge.

The U.S. Court of Appeals for the Sixth Circuit rejected the administration’s request for an emergency stay to pause a preliminary injunction issued by a federal judge in Kentucky. The court order applies only to businesses with federal contracts in Kentucky, Ohio, and Tennessee.

The Justice Department’s motion for an emergency stay argued the preliminary injunction against the vaccine requirement would cause irreparable harm to the government—including its ability to work with companies under terms of its choosing—as well as the public. Enforcement of the mandate had been set to begin this month.

U.S. Circuit Judge John Bush wrote the panel opinion, joined by Judge Richard Fred Suhrheinrich. The majority said the federal government has the power to facilitate “economical and efficient” purchase of goods and services under the Federal Property and Administrative Services Act.

“Yet that laudable legislative-branch prescription, in place for the last seventy years, has recently been re-envisioned by the executive,” Bush wrote, adding that it had been “transformed into a novel font of federal authority to regulate the private health decisions of millions of Americans.”

Circuit Judge Guy Cole dissented. He said the government made a “strong showing” in its case and established that it will suffer irreparable harm without a stay. He said he believes the government will ultimately prevail on the merits.

Cole disagreed with the states’ argument that they had standing to sue to block the vaccine mandate; in his view, the president has authority under the federal government’s contract power to impose such requirements on companies that seek to do government work.

“As to future contracts, at no point do the states provide any legal support for their contention that failure to bid on a contract or failure to receive federal funds is a cognizable harm,” Cole wrote. “It is a potential contracting party’s choice not to contract with the federal government—the government’s mandate does not prevent states from bidding or otherwise contracting.”

U.S. District Judge Gregory F. Van Tatenhove had issued the injunction Nov. 30, stating the president likely overstepped his power in issuing the requirement. The Eastern District of Kentucky judge declined a similar request to lift the stay on Dec. 10, which prompted the administration to appeal to the Sixth Circuit.

The Biden administration also has asked the Atlanta-based Eleventh Circuit to dismantle a Georgia federal court’s nationwide injunction against the contractor shot mandate. That request is pending.

Similar federal lawsuits filed by other conservative-led states, including Arizona, Florida, Texas, and Oklahoma, also are pending.

The case is Kentucky v. Biden, 6th Cir., No. 21-6147, emergency stay rejected 1/5/22.