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Fifth Circuit hears debate over federal contractor vaccine mandate

Louisiana’s solicitor general argued the Biden administration trampled on states’ rights when it ordered workers who contract with the federal government to get the Covid-19 vaccine.

NEW ORLEANS (CN) — A federal appeals court heard arguments Monday over whether a lower court judge erred in blocking the Biden administration’s vaccine requirements for federal contract workers in Louisiana, Mississippi and Indiana. 

Senior U.S. District Judge Dee Drell, a George W. Bush appointee based in Alexandria, Louisiana, made clear in his December 2021 preliminary injunction order that his decision applies only to the three plaintiff states that brought the case.

Assistant U.S. Attorney David Peters, arguing on behalf of the Biden administration, told a three-judge Fifth Circuit panel Monday that requiring all employees in those three states who contract with the federal government to comply with a vaccine mandate during a “once-in-a-century pandemic” is not unreasonable.

But U.S. Circuit Judges Kurt D. Engelhardt and Stuart Kyle Duncan, both appointees of Donald Trump, asked Peters if, using the same logic behind the vaccine order, the government could demand that federal employees not live in a house with a smoker or comply with food guidelines to avoid obesity. They also asked about the hypothetical example of demanding women take contraception to avoid getting pregnant, which leads to needing extended time off of work.  

Peters did not directly comment on those scenarios but said the costs that would be saved by having all employees vaccinated against Covid-19 would be “far outweighed” by the benefits.

Louisiana Solicitor General Elizabeth Murrill, a Republican who argued on behalf of the three states, disagreed.

Murrill said the issue at hand is presidential power. She said the government did not include a limiting principal when requiring vaccines for employees of contractors.

“What about the nexus between economy and efficiency?” U.S. Circuit Judge James E. Graves, an appointee of Barack Obama, asked Murrill. “That’s not a good limiting principal?”

She replied that looking at past practices might be relevant.

Engelhardt asked her if the federal government could, for instance, require contractors to use only green technology to make their work more energy efficient.

“Would that be in the president’s power?” Engelhardt asked.

Murrill said the court would need to look to the Competition in Contracting Act for guidance on that question but said she thought not.

“If you go to the government’s website and look at that act’s guidelines, everything pushes toward pushing more people to compete and driving prices down, so it makes it more [economically] efficient,” Murrill said, adding that requiring green infrastructure would not fit into that model.         

Murrill said that in requiring workers who contract with the federal government to be vaccinated, the Biden administration tried to “co-opt state power.”

“I think you have to take into consideration everything [President Joe Biden] said and what this purpose is,” she said.

“It simply cannot be that he has such a broad power that he can require all contractors, all subcontractors – even people who work at home – to be vaccinated,” she continued. “The scope of this order has always been a part of his plan to vaccinate the workplace.”

Murrill said the administration "caught everyone within their grasp" and made the vaccine requirement "as ambiguous as they could so you could not even apply for an exemption.”

“So there weren’t religious exemptions?” Graves asked.

Murrill replied that a person seeking a religious exemption would not have had anywhere to apply for the exemption.

During rebuttal, Peters said the president always has the authority to issue executive orders such as the vaccine mandate.

The judges did not indicate how or when they will rule.

In the lower court's order, Drell said the problem isn’t that vaccinating isn’t effective in curbing the spread of Covid-19, it’s that the government’s issuance of mandatory vaccine requirements for employees violates the 10th Amendment reserving power for the states.

In granting injunctive relief to Louisiana, Mississippi and Indiana, Drell said he found through testimony at a hearing that the states had “no bargaining power” in the matter of vaccines.

In his order, Drell pointed to a Fifth Circuit decision from last November that halted a vaccine mandate for businesses with 100 or more workers. It said "the principals at stake when it comes to the [mandate] are not reducible to dollars and cents."

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