WASHINGTON – Legislative leaders said they expect to appeal a federal court ruling that said President Joe Biden had the authority to require COVID-19 vaccinations for contractors working on federal contracts in Arizona.
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The ruling Wednesday by a three-judge panel of the 9th U.S. Circuit Court of Appeals reversed a lower court that had blocked the mandate in Arizona because it exceeded the president’s authority. The circuit court ruling also ran counter to findings in a number of other federal courts around the country that had blocked the 2021 vaccination mandate.
But the 9th Circuit panel said the order – issued under the Procurement Act, which is meant to “ensure economy and efficiency” in federal contracting – was well within Biden’s authority, 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.
“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 Wednesday’s ruling will have, as the administration backed down on enforcement of the executive order last year in the face of multiple legal challenges.
But the lack of an immediate impact did not stop Arizona House and Senate leaders from saying they are reviewing the ruling and that an appeal is likely. Their representatives declined further comment because the case is under review.
A spokesperson for Arizona Attorney General Kris Mayes said Thursday that her office is also studying the ruling and considering next steps.
Mayes’ office inherited the lawsuit from former 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.
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 Mayes took office this year, she took up the case but dropped many of Brnovich’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.”
He 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 noted that 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.
