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|Court denies stay of
of federal contractor
Kentucky v. Biden (6th Cir
Sent to Custom
Alerts™ subscribers on 01/05/2022
After the President
signed Executive Order 14042, which essentially requires federal
contractors to require that their employees are vaccinated against
COVID-19, three states challenged this mandate.
court preliminarily enjoined enforcement of the contractor mandate
throughout Ohio, Kentucky, and Tennessee, and denied a stay
The government went to the 6th Circuit
seeking a stay pending appeal, and the Circuit Court (2-1) denied
The court found that the challengers were
likely to succeed on the merits. The government claims it has the
authority to issue the mandate based on the Property and
Administrative Services Act of 1949. The court's reaction to this
was negative: "By its plain text, the Property Act does not
authorize the contractor mandate. *** If an agency really had the
power to promulgate a so-called 'Guidance' with such 'vast
economic and political significance,' we would need a clear
statement from Congress delegating such authority to the executive
branch." "But there is no textual warrant to suggest that after
the President or his agents have 'economical[ly] and
efficient[ly]' acquired those services that they then may impose
whatever medical procedure deemed 'necessary' on the relevant
services personnel to make them more 'economical and efficient.'"
The court also discussed the "major-questions" doctrine – the
idea that the mandate is so novel that it is unlikely that
Congress intended to delegate that authority. "Two considerations
are of particular concern—the contractor mandate’s potentially
vast economic significance and its potential implications for 'the
balance between federal and state power.'"
The court also
found that the government will not suffer irreparable injury
absent a stay, a stay would harm the plaintiff states, and the
public-interest factor does not sufficiently outweigh all the
other defects with the government's case to warrant a stay.
The DISSENT asserted that "I find that the government has made
a 'strong showing' in this case that it will prevail on the merits
and has established that it will suffer irreparable harm without a
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