Ninth Circuit reverses block of Biden vaccine mandate in Arizona

LAS VEGAS (CN) — A Ninth Circuit panel on Wednesday confirmed the legality of President Joe Biden's Covid vaccine mandate for federal contractors, reversing a permanent injunction on enforcement in the state of Arizona.

“President Biden was justified in concluding that requiring federal contractors who worked on or in connection with federal government projects to be vaccinated against Covid-19 would promote economy and efficiency in federal contracting,” U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, wrote in the opinion issued Wednesday morning.

Then-Arizona Attorney General Mark Brnovich sued Biden, the U.S. government and various Arizona state agencies after Biden’s 2021 announcement that all federal employees and contractors, along with employees of private employers with 100 or more workers, must receive the Covid-19 vaccine, and that government agencies can only do business with contractors that follow to Covid-19 guidelines. Brnovich and the state claimed Biden’s order violated the Procurement Act, which gives the president power to regulate government agencies’ spending in a way that “advances economy and efficiency” of the nation. 

Current Arizona Attorney General Kris Mayes took over representing the office as a plaintiff when she took office in January. She declined to comment for this story.

U.S. District Judge Michael Liburdi ruled in favor of the plaintiffs regarding the Procurement Act and permanently enjoined the order from being enforced in Arizona as of Feb. 10. 

On appeal, the Biden administration argued the president's actions didn’t violate the Procurement Act because past presidents have issued similar executive decisions without violating the act, like former President George W. Bush’s 2008 order establishing the E-verify system for employers. 

The state of Arizona countered that unlike Bush's action, Biden's order regulates employee behavior rather than employer behavior and therefore is a violation.

The panel disagreed, finding Biden’s action was well within the powers given to him by the Procurement Act, and just because the act hasn’t been used to justify such an action in the past doesn’t mean can’t now.

“The non-use of power doesn’t disprove its existence,” Bennett wrote.

Bennett said the panel found no evidence to disprove the president’s reasoning that decreasing the spread of the deadly virus would decrease worker absenteeism, reduce labor costs and ultimately improve the efficiency of the economy. Because of this, the mandate falls within the scope of the Procurement Act. 

“Would our analysis be different if the Covid-19 pandemic were far less serious?” Bennett wrote. “Perhaps, but unfortunately the president did not face that hypothetical. The president faced a pandemic the likes of which the world has not seen in more than a century.”

Arizona also cited the major questions doctrine, which says an agency that seeks to decide an issue of major national significance must have clear congressional authorization. Because Biden's order didn’t receive that, the state argued he violated the doctrine. 

But the panel said the doctrine doesn’t apply to the president, as Congress has already granted him power to “prescribe policies and directives” he deems “necessary to provide the federal government with an economical and efficient system.”

“If we were to determine that the major questions doctrine prevents the President from exercising lawfully delegated power, we would be rewriting the Constitution’s faithfully executed clause in a way never contemplated by the framers,” Bennett wrote. “We decline to do so.”

But even if the major questions doctrine did apply to the president, Bennett wrote, it wouldn’t apply to the vaccine mandate because the mandate didn’t seek to “regulate a significant portion of the American economy,” and doesn’t serve as a “transformative expansion” of any authority the president already has.

Given the context of an unprecedented pandemic that claimed more than one million American lives and billions in economic losses, the panel concluded that Biden violated no laws when he issued the vaccine mandate.

“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. “We reverse the district court’s grant of a permanent injunction and dissolve the injunction.”

The White House hasn't responded to a request for comment.

U.S. Circuit Judges Richard Clifton, appointed by George W. Bush, and Roopali Desai, appointed by Joe Biden, rounded out the panel.

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