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Court denies stay of injunction
of federal contractor
vaccination mandate (2-1)

Kentucky v. Biden (6th Cir 01/05/2022)
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.

The trial court preliminarily enjoined enforcement of the contractor mandate throughout Ohio, Kentucky, and Tennessee, and denied a stay pending appeal.

The government went to the 6th Circuit seeking a stay pending appeal, and the Circuit Court (2-1) denied that request.

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 stay."

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