Commonwealth v. Biden

57 F.4th 545

COMMONWEALTH of Kentucky, et al. Plaintiffs-Appellees,

v.Joseph R. BIDEN, in his official capacity as President of the United States of America, et al., Defendants-Appellants.

No. 21-6147

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2022

Decided and Filed: January 12, 2023

ARGUED: Joshua Revesz, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Matthew F. Kuhn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellees. ON BRIEF: Joshua Revesz, Anna O. Mohan, David L. Peters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Matthew F. Kuhn, Barry L. Dunn, Brett R. Nolan, Alexander Y. Magera, Michael R. Wajda, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Benjamin M. Flowers, Carol O'Brien, May Davis, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, James R. Flaiz, GEAGUA COUNTY PROSECUTOR'S OFFICE, Chardon, Ohio, Brandon J. Smith, Dianna Baker Shew, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. Henry C. Whitaker, OFFICE OF THE FLORIDA ATTORNEY GENERAL, Tallahassee, Florida, Steven P. Lehotsky, LEHOTSKY KELLER LLP, Washington, D.C., for Amici Curiae.

Before: SILER, McKEAGUE, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge.

A fundamental tenet of our constitutional order is that the President's authority "must stem either from an act of Congress or from the Constitution itself." Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 585, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). The critical question in this case is whether the President heeded this rule when he ordered all federal agencies to include in their new contracts a provision obligating contract recipients to require their employees to wear face masks at work and be vaccinated against COVID-19. The President has claimed no inherent constitutional power here; instead, he maintains that the Federal Property and Administrative Services Act of 1949 authorized his order. The district court and a motions panel of this court concluded that the President likely exceeded his powers under that Act. We agree. We therefore affirm the district court's decision to preliminarily enjoin the federal government from enforcing the mandate, but we modify the scope of the injunction.

I.

A.

When COVID-19 vaccines became widely available in the spring of 2021, the federal government largely left inoculation decisions to the people and the States. But on September 9, 2021—the same day that he ordered the Occupational Safety and Health Administration to make private employers mandate vaccination, see NFIB v. OSHA , ––– U.S. ––––, 142 S. Ct. 661, 663, 211 L.Ed.2d 448 (2022) (per curiam)—the President announced that he would require federal contractors to do the same: "If you want to do business with the federal government, vaccinate your workforce." Remarks by President Biden on Fighting the COVID-19 Pandemic (Sept. 9, 2021), https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-3/. The President ordered all executive agencies to include in their new and renewed contracts a clause specifying that the contractor and all subcontractors would obey COVID-19 safety guidance issued by the Safer Federal Workforce Task Force. Exec. Order No. 14,042 § 2(a), 86 Fed. Reg. 50,985 (Sept. 9, 2021). The President also ordered the Director of the Office of Management and Budget to "determine whether [the Task Force's] Guidance will promote economy and efficiency in Federal contracting." Id. § 2(c).

The Task Force soon issued its "guidance"—a curious term given that it required contractors to ensure that their covered employees are vaccinated. Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors 5 (Sept. 24, 2021), https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf. The "guidance" also required contractors to ensure that fully vaccinated employees working in areas of high community transmission wear a face mask while indoors, and that unvaccinated employees mask and socially distance regardless of local transmission rates. Id. at 6. The Director of the Office of Management and Budget then published a one-paragraph notice concluding that following the guidance would "improve economy and efficiency by reducing absenteeism and decreasing labor costs for contractors and subcontractors working on or in connection with a Federal Government contract." 86 Fed. Reg. 53,691, 53,692 (Sept. 28, 2021). Perhaps recognizing the vulnerability of that terse statement, the Director later replaced it with a significantly longer one. See 86 Fed. Reg. 63,418 (Nov. 16, 2021). But the bottom line was the same: The contractor mandate would "improve efficiency in Federal contracting" by decreasing absenteeism and reducing labor costs. Id. at 63,421 –23.

The mandate's scope is stunning. It is undisputed that approximately 20% of the nation's labor force works for a federal contractor. And once one unravels the guidance's nest of expansive definitions of "covered employee" and "covered contractor," "the difficult issue is understanding who" amongst that population "could possibly not be covered." Kentucky v. Biden (Kentucky II ), 23 F.4th 585, 591 (6th Cir. 2022). "Covered contractors" include both prime and subcontractors; covered employees include anyone working on or "in connection with" a covered contract, or at a covered workplace; and a "covered workplace" includes anywhere even a single employee works on or, again, "in connection with," a covered contract, whether indoors or outdoors. Task Force Guidance, supra , at 3–4, 10–11. The upshot is that the President's order effectively mandates vaccination for tens of millions of Americans.

As authority for issuing this sweeping directive the President relied not on any landmark legislation or broad emergency authority, but on a 70-year-old procurement statute, the Federal Property and Administrative Services Act of 1949 (Property Act). We turn to that Act now.

B.

Drawing on lessons the government had learned through military procurement during World War II, Congress set out to streamline its internal operations in the years following the War. James F. Nagle, A HISTORY OF GOVERNMENT CONTRACTING 466–68 (1992 ed.). On the civilian side, that effort culminated in the passage of the Property Act, Pub. L. No. 81-152, 63 Stat. 377 (1949), which aimed to "provide for the Government an economical and efficient system" for "the procurement and supply of personal property and nonpersonal services, including related functions such as contracting, ... storage, ... and records management," id. § 2. To that end, the Property Act created the now-familiar General Services Administration, which assumed the procurement powers of numerous prior agencies. Id. §§ 101–105. And consistent with its theme of centralization, see Nagle, supra at 470–71, the Property Act authorized the President to issue directives to effectuate its provisions, Pub. L. No. 81-152 § 205(a). Congress recodified the Property Act a few decades later. Pub. L. No. 107-217, 116 Stat. 1062 (2002).

Two provisions of the Property Act are at issue in this case. In their current form, they provide:

§ 101—Purpose

The purpose of this subtitle is to provide the Federal Government with an economical and efficient system for the following activities:

(1) Procuring and supplying property and nonpersonal services, and performing related functions including contracting, inspection, storage, issue, setting specifications, identification and classification, transportation and traffic management, establishment of pools or systems for transportation of Government personnel and property by motor vehicle within specific areas, management of public utility services, repairing and converting, establishment of inventory levels, establishment of forms and procedures, and representation before federal and state regulatory bodies.

(2) Using available property.

(3) Disposing of surplus property.

(4) Records management.

§ 121(a)—Administrative

The President may prescribe policies and directives that the President considers necessary to carry out this subtitle. The policies must be consistent with this subtitle.

40 U.S.C. §§ 101, 121(a).

The Presidents’ earliest invocations of the Property Act matched its relatively modest scope. President Truman established a "Federal Fire Council" within the General Services Administration and tasked it with protecting federal employees from fire hazards. Exec. Order No. 10,257, 16 Fed. Reg. 6,013 (June 26, 1951). President Eisenhower prescribed rules for the establishment and maintenance of interagency motor-vehicle pools, Exec. Order No. 10,579, 19 Fed. Reg. 7,925 (Dec. 2, 1954), and directed agencies to obtain new flags upon Hawaii's admission as a State, Exec. Order No. 10,834, 24 Fed. Reg. 6,865 (Aug. 25, 1959). And Presidents Kennedy and Nixon set rules for obtaining, managing, and relinquishing real property. Exec. Order No. 11,035, 27 Fed. Reg. 6,519 (July 11, 1962) ; Exec. Order No. 11,508, 35 Fed. Reg. 2,855 (Feb. 12, 1970). To be sure, administrations in this period also used federal contracting to achieve broader policy goals (namely, outlawing race discrimination) through conditions that regulated contractors, but they did not invoke the Property Act in doing so. See, e.g. , Exec. Order No. 11,246, 30 Fed. Reg. 12,319, 12,319 –20 (Sept. 28, 1965) (citing "the Constitution and statutes of the United States" for authority to include in all federal contracts a provision prohibiting race discrimination); see also AFL-CIO v. Kahn , 618 F.2d 784, 790–91, & nn.32–33 (D.C. Cir. 1979) (en banc) (collecting executive orders prohibiting discrimination by federal contractors but noting that none expressly relied upon the Property Act).

That pattern changed in 1971 after the Third Circuit concluded that the ...