A federal judge in Kentucky has enjoined the federal government from enforcing the federal contractor vaccine mandate in three states. As of November 30, 2021, a judged issued a preliminary injunction against the contractor mandate for Kentucky, Ohio, and Tennessee.

The judge stated:

This is not a case about whether vaccines are effective. They are. Nor is this a case
about whether the government, at some level, and in some circumstances, can require citizens to
obtain vaccines. It can. The question presented here is narrow. Can the president use
congressionally delegated authority to manage the federal procurement of goods and services to
impose vaccines on the employees of federal contractors and subcontractors? In all likelihood,
the answer to that question is no.

There were a few reasons to grant the injunction that the judge highlighted.

First, under the Competition in Contracting Act’s goal of full and open competition, “contractors who ‘represent[] the best value to the government’ but choose not to follow the vaccine mandate would be precluded from effectively competing for government contracts.”

Second, the judge viewed the mandate as overstepping bounds of powers delegated from Congress to the President, as the statute used as basis for the mandate (Federal Property and Administrative Services Act) has never been used to “used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors.”

Third, the mandate “intrudes on an area that is traditionally reserved to the States,” namely this is noneconomic activity over which states usually have the right to make laws.

This is a preliminary injunction, so any decision on a final injunction will come after further briefing and argument is heard by the court. We’ll stay tuned to see if the judge issues a permanent injunction after fully considering the issue.

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