In the latest in a series of judicial decisions impeding executive agency action that had been aimed at slowing COVID-19 vaccination rates in the U.S. (see here and here), on November 30, 2021, a federal judge for the Eastern District of Kentucky issued a preliminary injunction blocking implementation of President Biden’s Executive Order 14042 which would require federal contractors to ensure their employees are vaccinated against COVID-19. The 29-page order and preliminary injunction in Kentucky v. Biden, 3:21-cv-00055-GFVT (E.D. Ky. Nov. 30, 2021), applies to federal contractors only in Kentucky, Ohio, and Tennessee, but similar challenges are percolating in other jurisdictions as well, including Arizona, Florida, Georgia, Oklahoma, and Texas.
After finding that the plaintiff State Attorneys General had standing to challenge the Executive Order, as the citizens of their states had lucrative current and future government contracts at stake, Judge Gregory F. Van Tatenhove concluded that the petitioners were likely to succeed in their argument that the Biden administration exceeded its authority over the federal procurement of goods and services when it issued an executive order requiring that the providers of those services impose vaccine mandates on their workforces. Although the Court recognized Congress had delegated its procurement authority to the President through enactment of the Federal Property and Administrative Services Act (FPASA) in order to promote economy...
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