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Sixth Circuit urged to overturn block on federal contractor vaccine mandate

The appeals court is weighing whether to lift an injunction in three states barring enforcement of a mandate for federal contractors and subcontractors to be vaccinated against Covid-19.

CINCINNATI (CN) — The federal government was in court Thursday arguing before the Sixth Circuit to lift a block on a coronavirus vaccine mandate for federal contractors in Kentucky, Ohio and Tennessee.   

The mandate at issue required all federal contractors to get vaccinated against Covid-19 before Jan 4. 2022, but was blocked by U.S. District Judge Gregory Van Tatenhove in November of last year.

Van Tatenhove, a George W. Bush appointee, found that the Biden administration had likely overreached its authority when it handed down the mandate, but only applied the injunction to federal contractors in Kentucky, Ohio and Tennessee, the three states that sued to challenge the mandate.

“On the record currently before the Court, there is a serious concern that Defendants have stepped into an area traditionally reserved to the States, and this provides an additional reason to temporarily enjoin the vaccine mandate,” Van Tatenhove wrote in his 29-page opinion.

That ruling was appealed by the federal government, sending the case to be heard before a three-judge panel of the Sixth Circuit on Thursday in a roughly 30-minute hearing.

Almost all questioning from the judges centered on the Federal Property and Administrative Services Act of 1949, also known as the Procurement Act. Specifically, the judges questioned if the mandate was in line with provisions of the act that allow the president to promote polices and directives for federal contracting.

Justice Department attorney Joshua Revesz argued on behalf of the federal government and claimed that the contractor vaccine mandate was well within the powers of the Procurement Act and such a position was supported by historical evidence from past presidents.

“It just doesn’t strike me as plausible that all those presidents you know, Eisenhower, Kennedy, Johnson, Nixon, Carter, George W. Bush, Obama, Trump, were all reading the statute the wrong way,” Revesz said.  

The federal government argued in its brief to the Sixth Circuit that Biden’s executive order handing down the vaccine mandate for federal contractors clearly fell within his economic purview.

“That Executive Order falls well within the terms of the Procurement Act. Requiring entities that enter into federal contracts to have a vaccinated workforce enhances the efficiency of federal contractor operations because a workplace free from Covid-19 is more efficient than a workplace in which employees become infected, transmit their infections to others, and miss work,” the brief states.

Kentucky Solicitor General Matthew Kuhn represented the three states opposed to the mandate and said the order was outside the bounds of Biden’s power under the Procurement Act.

“Earlier this year the Supreme Court told us that OSHA could not mandate the Covid-19 vaccine for millions of workers based on a workplace safety statute,” Kuhn said. “If a workplace safety statute is not enough for a far-reaching public health measure, neither is a statute governing federal procurement.”

Kuhn was referring to a January U.S. Supreme Court decision that upheld a block on an OSHA workplace vaccine mandate.

However, when it comes to the case before the Sixth Circuit, there is no Supreme Court decision that directly address the issues raised.

Both during oral arguments and in a court-submitted brief, Kuhn argued that the contractor vaccine mandate infringes upon the rights of the states.

“Enforcing the contractor mandate would irreparably harm the sovereign interests of Kentucky, Ohio, and Tennessee and would impose unrecoverable costs. The equities and the public interest likewise favor the States,” the brief states.

U.S. Circuit Judge Joan Larsen, a Trump appointee, questioned Kuhn about this argument, asking him why the states wouldn't just reject a contract if the terms put forward by the federal government were unfavorable.

“Couldn’t you just choose to not take the contact?” Larsen asked.

Kuhn responded by saying the states' arguments are focused on statutory interpretation, but regardless the contractor vaccine mandate could be seen as coercive in nature.

Revesz concluded the hearing by arguing that the president is required to ensure that American citizens get a “good deal” from the government and that the block on the mandate should be lifted.

“In our view the evidence confirms that requiring common sense steps to prevent workplace Covid-19 outbreaks is what was necessary to provide the American worker, the American citizen that good deal,” Revesz said. “For those reasons we would ask that the judgment below be reversed.”

Larsen was joined on the panel by U.S. Circuit Judges Eugene Siler, a George H.W. Bush appointee, and David McKeague, appointed to the court by George W. Bush.

The judges did not indicate when they would issue a ruling.

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