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The U.S. government has contracts with thousands of companies,
and courts have said the issue could affect up to 20% of U.S.
workers.
A panel of the 5th Circuit Court of Appeals voted 2-1 to uphold
a lower court decision that blocked President Joe Biden's
September 2021 contractor vaccine executive order in those
states after Louisiana, Indiana, and Mississippi brought suit to
seek invalidation of the mandate.
The court said Biden wanted it "to ratify an exercise of
proprietary authority that would permit him to unilaterally
impose a healthcare decision on one-fifth of all employees in
the United States. We decline to do so."
The majority opinion written by Judge Kurt Engelhardt said a
broad interpretation of the law could give Biden "nearly
unlimited authority to introduce requirements into federal
contracts."
Illustrating that point, he added, "hypothetically, the
president could mandate that all employees of federal
contractors reduce their BMI (body mass index) below a certain
number on the theory that obesity is a primary contributor to
unhealthiness and absenteeism."
The White House did not immediately comment.
The Justice Department defended the mandate in a court filing,
saying Biden's order was justified under the Procurement Act.
Judge James Graves' dissent noted this was the first executive
order under the Procurement Act to be struck down.
"When actions taken are in the mainstream of American
businesses, that points towards permitting the executive order,"
he wrote. "Economic factors would prevent the president from
handicapping the contractor workforce with extreme contractual
terms."
Graves disputed the BMI comparison, saying if a president sought
to impose "draconian measures outside the mainstream of American
companies, he or she would hear from the people or from
Congress."
The Justice Department said in its earlier filing that
"requiring entities that enter into federal contracts to have a
vaccinated workforce enhances the efficiency of federal
contractor operations."
The 11th Circuit Court of Appeals in August upheld a separate
lower court order banning enforcement of the contractor vaccine
mandate but lifted a nationwide injunction and said its ruling
only applied in seven states that filed suit and to members of
the Associated Builders and Contractors.
The White House directed agencies in October not to seek to
enforce the contractor rules noting some other court rulings
were in effect.
(Reporting by David ShepardsonEditing by Bill Berkrot)
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