In the court’s decision from yesterday, Judge Stan Baker held that “Plaintiffs have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.” Opinion at 20. The court also held that the risk of losing contracts, complying with a regulation later held invalid, along with the time and cost of compliance efforts, constitute irreparable harm. Unlike the decision from last Tuesday on EO 14042 from the Eastern District of Kentucky, Judge Baker issued a nationwide injunction.
It will be interesting to see how the administration handles this collection of adverse decisions on its vaccination mandate requirements. We should expect that it will appeal Judge Baker’s decision to the Eleventh Circuit. In the meantime, the decision throws the contracting process involving EO 14042 into disarray. For the time being, the administration is barred from attempting to compel federal contractors to accept contract clauses requiring that their workforces be vaccinated. Employers also can suspend steps to mandate that their workforces become vaccinated. Though they also could decide that they nonetheless wish to require that employees to be vaccinated, employers should be mindful of state laws in Florida, Texas and elsewhere that bar vaccine mandates, which, for the time being, are no longer subject to federal preemption now that the Executive Order and other federal mandates are stayed.
Presumably, there will at some point be more clarity in regard to the ultimate enforceability of the administration’s vaccine mandates. That may still be weeks or months away, and probably will not come until the various cases are decided by the Supreme Court.
