By Howard Fischer
Capitol Media Services
PHOENIX -- A federal appeals court has ruled the Biden administration has the power to require the state or any Arizona company with a federal contract to vaccinate all of its workers against COVID-19.
In a 50-page ruling, the three judge panel of the 9th Circuit Court of Appeals rejected claims first brought by former state Attorney General Mark Brnovich that the executive order went beyond the scope of the president's authority. Instead, the judges said Biden was justified in imposing the vaccine mandate to ensure that those with federal contracts, which in Arizona includes state universities, perform their work efficiently and on time.
And the court rejected claims by Brnovich, who at the time was running for U.S. Senate, largely on his disagreements with -- and lawsuits against -- the Biden administration on multiple issues, that the mandate violated state sovereignty.
A spokesman for Kris Mayes, the current attorney general, said Thursday the office is reviewing the ruling before deciding whether to file further appeals.
The 1949 federal Procurement Act allows the president to issue directives to create an "economical and efficient system'' to ensure the government gets the items and services it needs.
Biden cited that authority in 2021 to require that contractors who work on or in conjunction with federal government projects to be vaccinated to "promote economy and efficiency in those projects.'' And it directed federal agencies to include such clauses in contracts.
Brnovich sued. He even got U.S. District Court Judge Michael Liburdi last year to block the presidential directive.
In an extensive ruling, Liburdi scoffed at "the sheer scope of the president's claimed authority,'' saying that buying Biden's argument would give the president almost unfettered power to interfere with private employment.
"If, for example, the president determined that obesity, diabetes, and other health issues were linked to the consumption of sugary drinks and fast food, and that such health issues led to absenteeism and a lack of productivity in the workplace, he could, on (the administration's) reading, issue an executive order requiring all federal contractor employees to refrain from consuming soda or eating fast food,'' the judge wrote. "But in reality, the president's authority under the (procurement) act is not so broad.''
Liburdi did not dispute that the pandemic would have some impact on federal contracts. But that, he said, does not make the Biden policy lawful.
But Judge Mark Bennett, writing for the three-judge appellate panel, said those conclusions were wrong.
It starts, he wrote, with the public health emergency first declared in early 2020. Bennett cited figures of more than 100 million cases of COVID in the United States and 1.1 million deaths.
And he said the pandemic "triggered the greatest worldwide recession since the end of World War II.''
At the same time, the director of the Office of Management and Budget determined that a vaccine mandate would "decrease the spread of COVID-19, which in turn decreases worker absence, saving labor costs on net, and thereby improve efficiency in federal contracting.'' That became the basis for Biden's mandate.
Bennett said all that falls within the authority of the 1949 law.
"It is axiomatic that federal contracts will be performed more economically and efficiently with fewer absences,'' the judge wrote.
He acknowledge that analysis might be different if the pandemic were not so serious.
"But unfortunately the president did not face that hypothetical,'' Bennett said. "The president faced a pandemic the likes of which the world has not seen in more than a century.''
He also rejected any arguments that upholding the Biden order would open the door to other mandates on federal contractors, like requirements they certify that their employees take daily vitamins, live in smoke-free homes, exercise three times a week or even take birth control to reduce absenteeism related to childbirth and care.
"We reject these invitations to adjudicate slippery-slope hypotheticals,'' Bennett wrote. "In our system of government, courts base decisions not on dramatic Hollywood fantasies but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an assailable record.''
Anyway, he said, the Procurement Act clearly says the president can only implement policies and directive he "considers necessary'' to ensure "an economical and efficient system'' for procurement and contracting.
"While a future president might try to analogize soda soda consumption to a worldwide pandemic in issuing an executive order under the Procurement Act, we will leave consideration of that hypothetical executive order to a future court,'' Bennett said.
Liburdi, in issuing the injunction last year, said there was another flaw in the president's action.
He said that the U.S. Constitution generally reserves police power to the state. And that, Liburdi said, is defined as the authority to provide for public health, safety and morals.
"This traditional 'police power' includes authority over compulsory vaccination,'' he wrote. "It also includes, as a general matter, power to prohibit vaccination from being compelled.''
The appellate judges weren't buying that, either.
"Even if the mandate did regulate health and safety, the federal government does not invade areas of state sovereignty simply because it exercises its authority in a manner that displaces the states' exercise of their police powers,'' Bennett said.
In ruling against Brnovich, the appellate judges also pointed out this is hardly the first time a president has used the Procurement Act to regulate actions of contractors.
For example, they cited a 1971 ruling by a different appellate court upholding an executive order requiring contractors to commit to affirmative action programs. In that case, the court said it was legal because the economy would be improved by preventing government suppliers from increasing labor costs by excluding available workers from the labor pool.
Another appellate court upheld an order by President Jimmy Carter requiring federal contractors to adhere to price and wage guidelines.
President George W. Bush cited the Procurement Act in requiring government contractors to post notices at their facilities informing workers of their labor rights. He also issued a separate executive order requiring federal contractors to use the E-Verify system to confirm that workers were in this country legally.
And President Barack Obama cited the law to require federal contractors to ensure that employees can earn up to seven days or more of paid sick leave annually, including paid leave for family care.
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