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Plaintiffs' Memorandum in Support of Motion for Preliminary Injunction, filed November 4, 2021 as Doc. #: 9 in State of Missouri v. Joseph R. Biden, No. 4:21-cv-01300-DDN, in the U.S. District Court for the Eastern District of Missouri. It is brought by ten plaintiff states: Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota and Wyoming. The memorandum asks the court to enjoin the federal contractor vaccine mandate adopted through Executive Order 14042 and Safer Federal Workforce Task Force guidance, arguing that it exceeds the President's authority under the Procurement Act, is arbitrary and capricious, violates the Procurement Policy Act, and exceeds Congress's enumerated powers. The statement of facts describes Executive Order 13991, 86 Fed. Reg. 7045, and a September 9, 2021 speech. The brief runs 56 pages with a table of authorities.
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No. 4:21-cv-01300-DDN · Doc. 9 · Docket on CourtListener
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Case: 4:21-cv-01300-DDN Doc. #: 9 Filed: 11/04/21 Page: 1 of 56 PageID #: 124
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STATE OF MISSOURI,
STATE OF NEBRASKA,
STATE OF ALASKA,
STATE OF ARKANSAS,
STATE OF IOWA,
STATE OF MONTANA, No. 4:21-cv-01300
STATE OF NEW HAMPSHIRE,
STATE OF NORTH DAKOTA,
STATE OF SOUTH DAKOTA,
STATE OF WYOMING,
Plaintiffs,
v.
JOSEPH R. BIDEN, et al.,
Defendants.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR
PRELIMINARY INJUNCTION
i
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION .......................................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
I. Creation of the Safer Federal Workforce Task Force. ........................................................ 2
II. President Biden’s September 9, 2021, Speech Announces Federal Vaccine Mandates. .... 2
III. Executive Order 14042’s Vaccine Mandate for Federal Contractors. ............................. 4
IV. The Task Force’s Guidance Adopts a Sweeping Vaccine Mandate. ............................... 8
V. OMB’s Perfunctory “Notice of Determination” on the Task Force Guidance. ................ 11
VI. The FAR Council Drafts a Contract Clause to Adopt the Task Force Guidance........... 12
VII. The Federal Contractor Vaccine Mandate’s Disruptive Impact..................................... 14
ARGUMENT ................................................................................................................................ 15
I. The Plaintiff States Are Likely To Succeed on the Merits of Their Claims. .................... 15
A. The Contractor Vaccine Mandate Exceeds the President’s Statutory Authority Under
the Procurement Act. ............................................................................................................ 16
B. The Contractor Vaccine Mandate Is Arbitrary and Capricious. ................................. 25
C. The Contractor Vaccine Mandate Violates the Procurement Policy Act. .................. 31
D. The Contractor Mandate Exceeds Congress’s Enumerated Powers and
Unconstitutionally Infringes on the Authority of the States. ................................................ 33
II. The Balancing of Harms and the Public Interest Support an Injunction. ......................... 37
A. Absent an Injunction, Plaintiff States Will Suffer Irreparable Harm to Their
Sovereign, Quasi-Sovereign, and Proprietary Interests. ....................................................... 37
B. Blocking the Enforcement of the Unlawful and Unconstitutional Mandate Will Inflict
No Cognizable Harm on the Federal Government................................................................ 42
C. The Public Interest Strongly Favors an Injunction. .................................................... 42
CONCLUSION ............................................................................................................................. 44
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TABLE OF AUTHORITIES
Cases
Abbott v. Perez,
138 S. Ct. 2305 (2018) .............................................................................................................. 39
Ala. Ass’n of Realtors v. Dep’t of Health & Human Servs.,
141 S. Ct. 2485 (2021) (per curiam .............................................................................. 24, 25, 42
Alden v. Maine,
527 U.S. 706 (1999) .................................................................................................................. 43
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez,
458 U.S. 592 (1982) .................................................................................................................. 40
Alphapointe v. Dep’t of Dep’t of Veterans Affairs,
416 F. Supp. 3d 1 (D.D.C. 2019) .............................................................................................. 25
Bailey v. United States,
516 U.S. 137 (1995) .................................................................................................................. 32
Bennet v. Spear,
520 U.S. 154 (1997) ............................................................................................................ 26, 27
Bond v. United States,
564 U.S. 211 (2011) .................................................................................................................. 43
Bond v. United States,
572 U.S. 844 (2014) ............................................................................................................ 21, 22
Building & Const. Trades Council of the Metro. Dist. v. Assoc. Builders & Contractors of
Massachusetts/Rhode Island, Inc.,
507 U.S. 218 (1993) .................................................................................................................. 17
Chamber of Commerce of the U.S. v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) ............................................................................................ 17, 18
Coal. for Econ. Equity v. Wilson,
122 F.3d 718 (9th Cir. 1997) .................................................................................................... 39
Dataphase Sys., Inc. v. C.L. Sys., Inc.,
640 F.2d 109 (8th Cir. 1981) (en banc ...................................................................................... 15
Dep’t of Com. v. New York,
139 S. Ct. 2551 (2019) .............................................................................................................. 31
Dep’t of Homeland Security v. Regents of Univ. of Cal.,
140 S. Ct. 1891 (2020) ....................................................................................................... passim
iii
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Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568 (1988) .................................................................................................................. 24
Elrod v. Burns,
427 U.S. 347 (1976) .................................................................................................................. 40
Encino Motorcars, LLC v. Navarro,
136 S. Ct. 2117 (2016) .............................................................................................................. 28
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) .................................................................................................................. 29
FCC v. Prometheus Radio Project,
141 S. Ct. 1150 (2021) ........................................................................................................ 27, 28
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .................................................................................................................. 23
FERC v. Mississippi,
456 U.S. 742 (1982) .................................................................................................................. 43
Gregory v. Ashcroft,
501 U.S. 452 (1991) ...................................................................................................... 21, 37, 43
Harrison v. PPG Indus., Inc.,
446 U.S. 578 (1980) .................................................................................................................. 26
Huffman v. State,
204 P.3d 339 (Alaska 2009)...................................................................................................... 38
Hyatt v. OMB,
908 F.3d 1165 (9th Cir. 2018) .................................................................................................. 25
Jacobson v. Massachusetts,
197 U.S. 11 (1905) .......................................................................................................... 1, 22, 34
KH Outdoor, LLC v. City of Trussville,
458 F.3d 1261 (11th Cir. 2006) ................................................................................................ 42
King v. Burwell,
576 U.S. 473 (2015) .................................................................................................................. 23
Land Shark Shredding, LLC v. United States,
842 F. App’x 589 (Fed. Cir. 2021) ........................................................................................... 25
League of Women Voters of U.S. v. Newby,
838 F.3d 1 (D.C. Cir. 2016) ...................................................................................................... 42
iv
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Make Liberty Win v. Ziegler,
478 F.Supp.3d 805 (W.D. Mo. 2020) ....................................................................................... 42
Maryland v. King,
567 U.S. 1301 (2012) ................................................................................................................ 39
Meyer v. Bush,
981 F.2d 1288 (D.C. Cir. 1993) ................................................................................................ 25
Mgmt. Ass’n for Private Photogrammetric Surveyors v. United States,
492 F. Supp. 2d 540 (E.D. Va. 2007) ....................................................................................... 26
Michigan v. EPA,
576 U.S. 743 (2015) ............................................................................................................ 30, 31
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ........................................................................................................ 27, 28, 30
N.Y. Progress & Prot. PAC v. Walsh,
733 F.3d 483 (2d Cir. 2013)...................................................................................................... 42
Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
551 U.S. (2007) ........................................................................................................................ 28
NFIB v. Sebelius,
567 U.S. 519 (2012) ............................................................................................... 34, 35, 36, 37
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,
434 U.S. 1345 (1977) ................................................................................................................ 39
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) .................................................................................................................. 43
New York v. United States,
505 U.S. 1448 (1992 ............................................................................................... 33, 34, 37, 43
Nken v. Holder,
556 U.S. 418 (2009) .................................................................................................................. 42
Org. for Black Struggle v. Ashcroft,
978 F.3d 603 (8th Cir. 2020) .................................................................................................... 39
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) ...................................................................................................................... 35
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,
734 F.3d 406 (5th Cir. 2013) .................................................................................................... 39
v
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Printz v. United States,
521 U.S. 898 (1997) .................................................................................................................. 36
Privacy Info Ctr. v. Nat’l Sec. Comm’n on Artificial Intelligence,
466 F. Supp. 3d 100 (D.D.C. 2020) .......................................................................................... 26
Roman Cath. Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) .................................................................................................................. 33
SEC v. Chenery Corp.,
332 U.S. 194 (1947) .................................................................................................................. 27
Sierra Club v. Andrus,
581 F.2d 895 (D.C. Cir. 1974) .................................................................................................. 25
Sisseton-Wahpeton Oyate of Lake Traverse Reservation v. U.S. Corps of Eng’rs,
888 F.3d 906 (8th Cir. 2018) .............................................................................................. 26, 27
Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers,
531 U.S. 159 (2001) .................................................................................................................. 23
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) .................................................................................................................. 17
Soucie v. David,
448 F.2d 1067 (D.C. Cir. 1971) ................................................................................................ 25
Thunder Basin Coal Co. v. Reich,
510 U.S. 200 (1994) .................................................................................................................. 40
United States v. Bass,
404 U.S. 336 (1971) ............................................................................................................ 21, 22
Util. Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) .................................................................................................................. 23
Van Wyhe v. Reisch,
581 F.3d 639 (8th Cir. 2009) .................................................................................................... 35
Watkins Inc. v. Lewis,
346 F.3d 841 (8th Cir. 2003) .............................................................................................. 15, 37
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .................................................................................................................. 26
Youngstown Sheet & Tube Co. v. Sawyer,
343 US 579 (1952) .................................................................................................................... 16
vi
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Zucht v. King,
260 U.S. 174 (1922) .................................................................................................................. 34
Constitutions
U.S. Const. art. I, § 8, cl. 1............................................................................................................ 35
U.S. CONST. amend. X. ................................................................................................................. 34
Statutes
3 U.S.C. § 301 ........................................................................................................................... 6, 16
5 U.S.C. § 553 ......................................................................................................................... 12, 33
5 U.S.C. § 702 ............................................................................................................................... 25
5 U.S.C. § 706 ............................................................................................................................... 27
18 U.S.C. § 3496 ........................................................................................................................... 17
32 U.S.C. § 110 ............................................................................................................................. 17
40 U.S.C. § 101 ............................................................................................................................. 16
40 U.S.C. § 121 ....................................................................................................................... 18, 19
41 U.S.C. § 1301 ........................................................................................................................... 19
41 U.S.C. § 1302 ..................................................................................................................... 12, 20
41 U.S.C. § 1303 ............................................................................................................... 20, 21, 26
41 U.S.C. § 1707 .................................................................................................................... passim
Ark. Code 11-5-118 ...................................................................................................................... 39
Ark. Code 20-7-143 ...................................................................................................................... 39
Mo. Rev. Stat. § 1.302 .................................................................................................................. 38
Mo. Rev. Stat. § 67.265 ................................................................................................................ 38
Mont. Code Ann. § 49-2-312 ........................................................................................................ 39
Pub. L. No. 100-679, § 4, 102 Stat. 4055 ............................................................................... 12, 20
Regulations
Section 2.101 of the Federal Acquisition Regulation ............................................................... 7, 14
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Other Authorities
Joseph Biden, Remarks at the White House (Sept. 9, 2021) ................................................. passim
Chris Isidore & Virginian Langmaid, 72% of unvaccinated workers vow to quit if ordered to get
vaccinated, CNN.COM (Oct. 28, 2021) ........................................................................ 15, 19, 28
Kaiser Family Foundation Survey (Oct. 28, 2021) .......................................................................41
Office of Contract Compliance Programs, Dep’t of Labor, History of Executive Order 11246
(last visited Nov. 4, 2021) ..............................................................................................................14
Callie Patteson, Biden Chief Apparently Admits Vaccine Mandate “Ultimate Work-Around”,
N.Y. POST (Sept. 10, 2021) ............................................................................................................31
Press Briefing by Press Secretary Jen Psaki, July 23, 2021, White House .....................................2
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INTRODUCTION
For over a century, the U.S. Supreme Court has recognized that policies on compulsory
vaccination lie within the police powers of the States, and that “[t]hey are matters that do not
ordinarily concern the national government.” Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905).
Until quite recently, the Biden Administration agreed, stating on July 23 of this year that mandating
vaccines is “not the role of the federal government.” But on September 9, 2021, that position
underwent a dramatic about-face. The President announced several sweeping vaccine mandates,
including a mandate requiring vaccination of employees for all federal contractors and
subcontractors—a mandate that encompasses one-fifth of the entire American workforce. This
mandate is unconstitutional, unlawful, and unwise. The federal Government lacks authority under
its enumerated powers to issue the mandate, and its attempt to do so unconstitutionally infringes
on the States’ powers expressly reserved by the Tenth Amendment; the Executive Branch lacks
statutory authority to issue this mandate, which it shoe-horned into statutes that govern efficiency
in federal procurement and say nothing about federalizing public-health policy; and the mandate
is arbitrary and capricious because the federal agencies implementing it gave literally no
consideration to important aspects of the problem—such as the fact that 72 percent of unvaccinated
workers say they will forego their jobs rather than succumb to such a mandate. Indeed, the
mandate’s justification is manifestly pretextual, as the President openly announced that its actual
justification is to federalize COVID-19 health policy as part of a nationwide plan to increase
vaccination rates, not to improve efficiency in federal procurement. And the policy was unlawfully
issued without required notice-and-comment. The policy threatens to inflict enormous disruption
and irreparable injury on the Plaintiff States, as well as working families throughout the nation.
The Court should enjoin this illegal action.
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STATEMENT OF FACTS
I. Creation of the Safer Federal Workforce Task Force.
On January 20, 2021, President Biden signed Executive Order 13991, 86 Fed. Reg. 7045,
which established the Safer Federal Workforce Task Force (“Task Force”) to provide “ongoing
guidance to heads of agencies on the operation of the Federal Government, the safety of its
employees, and the continuity of Government functions during the COVID–19 pandemic.” 86
Fed. Reg. at 7046. The Task Force is headed by three co-chairs: (1) the Director of the Office of
Personnel Management (OPM); (2) the Administrator of General Services Administration (GSA);
and (3) the COVID–19 Response Coordinator. The Executive Order also required that GSA
“provide funding and administrative support for the” Task Force. Id.
But what the Task Force did not do was issue a vaccine mandate. For the first six months
of the Administration, neither the Task Force nor any other federal agency sought to impose
vaccine mandates on the American population. As recently as July 23, 2021, the White House
announced that mandating vaccines is “not the role of the federal government.” Press Briefing by
Press Secretary Jen Psaki, July 23, 2021, White House, https://www.whitehouse.gov/briefing-
room/press-briefings/2021/07/23/press-briefing-by-presssecretary- jen-psaki-july-23-2021/.
II. President Biden’s September 9, 2021, Speech Announces Federal Vaccine Mandates.
On September 9, 2021, amid flagging poll numbers due to the crisis in Afghanistan and on
the southern border, the Administration’s policy on federal vaccine mandates underwent a
dramatic about-face. President Biden gave a speech announcing his “six-point Plan” to “turn the
tide on COVID-19.” Joseph Biden, Remarks at the White House (Sept. 9, 2021),
https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/09/09/remarks-by-president-
biden-on-fighting-the-covid-19-pandemic-3/ (“Biden Speech”). The speech announced several
federal vaccine mandates, including the federal contractor mandate challenged here. Id.
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In his speech, President Biden laid principal responsibility for the ongoing pandemic with
unvaccinated Americans, saying that he is “frustrated with the nearly 80 million Americans who
are still not vaccinated.” Id. He stated that “[t]his is a pandemic of the unvaccinated,” and that
the “nearly 80 million Americans [who] are not vaccinated … can cause a lot of damage—and
they are.” Id. He blamed the unvaccinated for health-care shortages: “The unvaccinated
overcrowd our hospitals, are overrunning the emergency rooms and intensive care units, leaving
no room for someone with a heart attack, or [pancreatitis], or cancer.” Id. With respect to the
unvaccinated, he stated, “our patience is wearing thin.” Id. He also stated, “For the vast majority
of you who have gotten vaccinated, I understand your anger at those who haven’t gotten
vaccinated.” Id.
President Biden repeatedly emphasized that the vaccines provide robust protection from
severe health outcomes. He “emphasize[d] that the vaccines provide very strong protection from
severe illness from COVID-19. … [T]he world’s leading scientists confirm that if you are fully
vaccinated, your risk of severe illness from COVID-19 is very low.” Id. “In fact, based on
available data from the summer, only one of out of every 160,000 fully vaccinated Americans was
hospitalized for COVID per day.” Id. He stated that, “as the science makes clear, if you’re fully
vaccinated, you’re highly protected from severe illness, even if you get COVID-19.” Id. “In fact,
recent data indicates there is only one confirmed positive case per 5,000 fully vaccinated
Americans per day.” Id. President Biden advised Americans, if you are vaccinated, “[y]ou’re as
safe as possible.” Id.
Despite his repeated acknowledgement of the effectiveness of vaccines, the President
nevertheless deemed it necessary to “protect vaccinated [persons] from unvaccinated.” Id. In the
speech, President Biden announced the first plank of his plan, which is to “require more Americans
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to be vaccinated” in order to “combat those blocking public health.” Id. The purpose of his plan
is to “reduce the number of unvaccinated Americans.” Id. To that end, according to the President,
“[f]irst, we must increase vaccinations among the unvaccinated with new vaccination
requirements.” Id. President Biden stated: “The bottom line: We’re going to protect vaccinated
workers from unvaccinated co-workers. We’re going to reduce the spread of COVID-19 by
increasing the share of the workforce that is vaccinated in businesses all across America.” Id.
To that end, the President announced several new vaccine mandates—a mandate from
OSHA for employers that employ more than 100 employees, a mandate for health-care workers at
facilities receiving federal funds, a mandate for federal employees, and a mandate for employees
of federal contractors and subcontractors. Id. As relevant here, the President stated: “I will sign
an executive order that will now require all executive branch federal employees to be vaccinated—
all. And I’ve signed another executive order that will require federal contractors to do the same.”
Id. “If you want to work with the federal government and do business with us, get vaccinated. If
you want to do business with the federal government, vaccinate your workforce.” Id. At no point
in his speech the President mention—or even hint—that the mandates had anything to do with
promoting “efficiency and economy” in federal procurement.
The President also expressed a dismissive view of States that have adopted contrary public-
health policies in our system of federalism. He stated: “Let me be blunt. My plan also takes on
elected officials and states that are undermining you and these lifesaving actions.” Id. Speaking
scornfully of “governor[s]” who oppose such federal mandates, he said, “if these governors won’t
help us beat the pandemic, I’ll use my power as President to get them out of the way.” Id.
III. Executive Order 14042’s Vaccine Mandate for Federal Contractors.
On the same day, September 9, 2021, President Biden signed Executive Order 14042 (“EO
14042”), 86 Fed. Reg. 50,985 (Sept. 14, 2021) (attached as Exhibit A). EO 14042 instructs
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departments and agencies, including independent establishments, to require their contractors and
subcontractors to “comply with all guidance for contractor or subcontractor workplace locations
published by the Safer Federal Workforce Task Force, provided that the Director of the Office of
Management and Budget approves the Task Force Guidance and determines that the
Guidance ... will promote economy and efficiency in Federal contracting.” Id. § 2(a).
Section 1 of EO 14042 recites that it was intended to promote “economy and efficiency”
in federal procurement, stating: “This order promotes economy and efficiency in Federal
procurement by ensuring that the parties that contract with the Federal Government provide
adequate COVID-19 safeguards to their workers performing on or in connection with a Federal
Government contract or contract-like instrument….” Id. § 1. According to the order, “[t]hese
safeguards will decrease the spread of COVID-19, which will decrease worker absence, reduce
labor costs, and improve the efficiency of contractors and subcontractors at sites where they are
performing work for the Federal Government.” Id. “Accordingly, ensuring that Federal
contractors and subcontractors are adequately protected from COVID-19 will bolster economy and
efficiency in Federal procurement.” Id. Other than these bare recitals, the order provides no
further discussion of how it would promote “efficiency and economy.” Id.
Section 2(a) of EO 14042 directs all “[e]xecutive departments and agencies” to “ensure
that contracts and contract-like instruments … include a clause that the contractor and any
subcontractors (at any tier) shall incorporate into lower-tier contracts.” Id. § 2(a). “This clause
shall specify that the contractor or subcontractor shall, for the duration of the contract, comply
with all guidance for contractor or subcontractor workplace locations published by the Safer
Federal Workforce Task Force … , provided that the Director of the Office of Management and
Budget … approves the Task Force Guidance and determines that the Guidance, if adhered to by
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contractors or subcontractors, will promote economy and efficiency in Federal contracting.” Id.
“This clause shall apply to any workplace locations (as specified by the Task Force Guidance) in
which an individual is working on or in connection with a Federal Government contract or
contract-like instrument….” Id.
Section 2(b) of EO 14042 directs the Task Force, “[b]y September 24, 2021,” to “provide
definitions of relevant terms for contractors and subcontractors, explanations of protocols required
of contractors and subcontractors to comply with workplace safety guidance, and any exceptions
to Task Force Guidance that apply to contractor and subcontractor workplace locations and
individuals in those locations working on or in connection with a Federal Government contract or
contract-like instrument.” Id. § 2(b). “Prior to the Task Force publishing new Guidance related
to COVID-19 for contractor or subcontractor workplace locations,” the President instructed, “the
[OMB] Director shall, as an exercise of the delegation of my authority under the Federal Property
and Administrative Services Act, see 3 U.S.C. 301, determine whether such Guidance will promote
economy and efficiency in Federal contracting if adhered to by Government contractors and
subcontractors.” Id. § 2(c). “Upon an affirmative determination by the Director, the Director’s
approval of the Guidance, and subsequent issuance of such Guidance by the Task Force,
contractors and subcontractors working on or in connection with a Federal Government contract
or contract-like instrument … shall adhere to the requirements of the newly published Guidance,
in accordance with the clause described in subsection (a) of this section.” Id. (emphasis added).
Section 3 of EO 14042 provides instructions to the FAR Council to prepare a new contract
“clause” incorporating the Task Force’s Guidance to implement OMB’s directive. Section 3 also
says that “[t]he Federal Acquisition Regulatory Council, to the extent permitted by law, shall
amend the Federal Acquisition Regulation to provide for inclusion in Federal procurement
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solicitations and contracts subject to this order the clause described in section 2(a) of this order….”
Id. § 3(a). It further provides that the FAR Council “shall, by October 8, 2021, take initial steps to
implement appropriate policy direction to acquisition offices for use of the clause by
recommending that agencies exercise their authority under subpart 1.4 of the Federal Acquisition
Regulation.” Id. § 3(a). “By October 8, 2021, agencies shall take steps, to the extent permitted by
law, to exercise any applicable authority to ensure that contracts and contract-like instruments …
that are not subject to the Federal Acquisition Regulation and that are entered into on or after
October 15, 2021 … include the clause described in section 2(a) of this order.” Id. § 3(b).
Section 5 of EO 14042, entitled “Applicability,” specifies that the Order “shall apply to
any new contract; new contract-like instrument; new solicitation for a contract or contract-like
instrument; extension or renewal of an existing contract or contract-like instrument; and exercise
of an option on an existing contract or contract-like instrument,” in four broad categories, including
procurement and construction contracts, contracts for services covered by the Service Contract
Act, concessions, and contracts in connection with federal lands and services. Id. § 5(a). It
exempts grants, contracts with Indian Tribes under the Indian Self-Determination and Education
Assistance Act, “contracts or subcontracts whose value is equal to or less than the simplified
acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition
Regulation,” employees who work outside the U.S. and its outlying areas, and “subcontracts solely
for the provision of products.” Id. § 5(b).
Section 6 of EO 14042, “Effective date,” states that the Order applies immediately to new
contracts and new extensions or renewals on existing contracts, where the relevant contract or
extension will be executed on or after “October 15, 2021, consistent with the effective date for the
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action taken by the Federal Acquisition Regulatory Council pursuant to section 3(a) of this order.”
Id. § 6(a)(i).
IV. The Task Force’s Guidance Adopts a Sweeping Vaccine Mandate.
On September 24, 2021, the Safer Federal Workforce Task Force (“Task Force”) released
its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (attached
as Exhibit B) (“Task Force Guidance” or “Guidance”). The Task Force Guidance was never
published in the Federal Register. Rather, it is available on the Task Force’s website at:
https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20
210922.pdf. Nor did OMB or the Task Force call for public comment, wait 60 days before the
Guidance became effective, or provide a waiver from an authorized officer indicating that “urgent
and compelling circumstances ma[d]e compliance with” notice and comment and the effective
period impracticable. See 41 U.S.C. § 1707(d).
The Task Force Guidance announces that “[o]ne of the main goals of [the President’s] plan
is to get more people vaccinated.” Ex. B, at 1. The Guidance notes that EO 14042 “directs
executive departments and agencies … to ensure that covered contracts and contract-like
instruments include a clause (‘the clause’) that the contractor and any subcontractors (at any tier)
shall incorporate into lower-tier subcontracts.” Id. “This clause shall specify that the contractor
or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or
subcontractor workplace locations published by the Safer Federal Workforce Task Force, provided
that the Director of the Office of Management and Budget (‘OMB’) approves the Task Force
Guidance and determines that the Guidance, if adhered to by covered contractors, will promote
economy and efficiency in Federal contracting.” Id.
The Task Force Guidance provides no new justification for the sweeping vaccine mandate
for federal contractors. Instead, it just parrots the reasoning of EO 14042 on how a vaccine
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mandate would promote economy and efficiency: “These safeguards will decrease the spread of
SARS-CoV-2, the virus that causes COVID-19, which will decrease worker absence, reduce labor
costs, and improve the efficiency of contractors and subcontractors performing work for the
Federal Government.” Id. No further justification for the mandate was provided. See id.
Under the Task Force Guidance, “Federal contractors and subcontractors with a covered
contract will be required to conform to the following workplace safety protocols,” the first of which
is “COVID-19 vaccination of covered contractor employees, except in limited circumstances
where an employee is legally entitled to an accommodation.” Id. The Guidance notes that, because
OMB approved the Guidance, its directives are mandatory: “Covered contractors shall adhere to
the requirements of this Guidance.” Id. at 2. “Covered contractors must ensure that all covered
contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled
to an accommodation. Covered contractor employees must be fully vaccinated no later than
December 8, 2021.” Id. at 5.
Per the Guidance, the vaccine mandate extends to virtually any employee of a covered
contractor with any remote or tangential connection to federal contracts. The Guidance provides
that “covered contractor employee” “means any full-time or part-time employee of a covered
contractor working on or in connection with a covered contract or working at a covered contractor
workplace. This includes employees of covered contractors who are not themselves working on or in
connection with a covered contract.” Id. at 3 (emphasis added). A “covered contractor workplace”
means a “location controlled by a covered contractor at which any employee of a covered
contractor working on or in connection with a covered contract is likely to be present during the
period of performance for a covered contract.” Id. at 4. If there is any chance that a covered
employee may have contact with non-covered employees, including fleeting contact in “elevators,
stairwells, … and parking garages,” the entire “workplace”—the whole building, facility, etc.—is
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covered by the mandate. Id. at 10. A covered contractor must review its covered employees’
documentation to prove vaccination status. Id. at 5.
The Guidance specifically requires vaccination of employees who have natural immunity
to COVID-19 from a prior infection: “[C]overed contractor employees who have had a prior
COVID-19 infection are required to be vaccinated.” Id. at 10. It also requires vaccination of
workers who work outdoors: “[T]his Guidance applies to contractor or subcontractor workplace
locations that are outdoors.” Id. at 10. Likewise, workers who work remotely from home are also
covered by the mandate: “An individual working on a covered contract from their residence is a
covered contractor employee, and must comply with the vaccination requirement for covered
contractor employees, even if the employee never works at either a covered contractor workplace
or Federal workplace during the performance of the contract.” Id. at 11.
Every level of subcontractor must comply with the mandate: “The requirements in the order
apply to subcontractors at all tiers, except for subcontracts solely for the provision of products.
The prime contractor must flow the clause down to first-tier subcontractors; higher-tier
subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which
subcontract requirements are solely for the provision of products.” Id. at 12.
Almost any work that relates in any way to the federal contract, no matter how
administrative or tangential, is considered to be “in connection with” the covered contract:
“Employees who perform duties necessary to the performance of the covered contract, but who
are not directly engaged in performing the specific work called for by the covered contract, such
as human resources, billing, and legal review, perform work in connection with a Federal
Government contract.” Id. at 13.
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The Task Force Guidance explicitly applies to State employers, and it expressly preempts
state laws and regulations: “These requirements are promulgated pursuant to Federal law and
supersede any contrary State or local law or ordinance.” Id. at 13. The Task Force Guidance
purports to prevent States and local governments from protecting their citizens from vaccine
mandates, noting that it “appl[ies] in States or localities that seek to prohibit compliance with any
of the workplace safety protocols set forth in this Guidance.” Id. at 13.
V. OMB’s Perfunctory “Notice of Determination” on the Task Force Guidance.
The same day, September 24, 2021, the Acting Director of OMB published a brief “notice
of determination” in the Federal Register entitled Determination of the Promotion of Economy and
Efficiency in Federal Contracting Pursuant to Executive Order No. 14042. 86 Fed. Reg. 53,691–
92 (attached as Exhibit C). The notice, spanning about one column of one page of the Federal
Register, states that, “[a]s explained in Executive Order No. 14042 …, compliance with COVID-
19-related safety protocols improves economy and efficiency by reducing absenteeism and
decreasing labor costs for contractors and subcontractors working on or in connection with a
Federal Government contract.” Id. Noting that she had been instructed to do so by Section 2(c)
of EO 14042, the Acting Director stated, “Based on my review of the Safer Federal Workforce
Task Force’s COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors,
scheduled for issuance on September 24, 2021, … I have determined that compliance by Federal
contractors and subcontractors with the COVID–19-workplace safety protocols detailed in that
guidance will improve economy and efficiency by reducing absenteeism and decreasing labor
costs for contractors and subcontractors working on or in connection with a Federal Government
contract.” 86 Fed. Reg. 53,692.
That was the total sum of the Acting Director’s analysis. She, like the Task Force, simply
parroted the justification for the federal contractor mandate that the Executive Order provided. See
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id. No period of notice, and no opportunity for public comment, preceded OMB’s “notice of
determination.” Id. Nor did OMB’s “notice of determination” provide good cause for that failure,
see 5 U.S.C. § 553(d)(3), or contain a waiver from an authorized officer indicating that “urgent
and compelling circumstances ma[d]e compliance with” notice and comment and the effective
period impracticable, see 41 U.S.C. § 1707(d).
VI. The FAR Council Drafts a Contract Clause to Adopt the Task Force Guidance.
Congress established the Federal Acquisition Regulatory Council (“FAR Council”) in 1988
“to assist in the direction and coordination of Government-wide procurement policy and
Goverment-wide procurement regulatory activities in the Federal Government.” Office of Federal
Procurement Policy Act Amendments of 1988, Pub. L. No. 100-679, § 4, 102 Stat. 4055, later
codified at 41 U.S.C. § 1302(a). The FAR Council consists of the Office of Federal Procurement
Policy Administrator, the Secretary of Defense, the Administrator of NASA, and the Administrator
of GSA. 41 U.S.C. § 1302(b)(1). Subject to limited exceptions, the FAR Council has exclusive
authority to issue “a single [g]overnment-wide procurement regulation, to be known as the Federal
Acquisition Regulation.” Id. § 1303(a)(1).
As noted above, EO 14042 instructs the FAR Council to “amend the Federal Acquisition
Regulation to provide for inclusion in federal procurement solicitations and contracts subject to
this order” a clause stating that the contractor shall, for the duration of the contract, comply with
Task Force Guidance. EO 14042 further instructs agencies to seek to implement this clause in
contracts not covered by the Federal Acquisition Regulation (“FAR”). 86 Fed. Reg. 50,985–86.
On September 30, 2021, the FAR Council—purporting to comply with the executive
order—issued a memorandum entitled “Issuance of Agency Deviations to Implement Executive
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Order 14042” (“FAR Council Memorandum”) (attached as Exhibit D). 1 In issuing the FAR
Council Memo, the FAR Council did not provide notice or opportunity for public comment.
The FAR Council Memorandum states that “[t]he purpose of this memorandum is to
provide agencies that award contracts under the Federal Acquisition Regulation (FAR) with initial
direction for the incorporation of a clause into their solicitations and contracts to implement
guidance issued by the Safer Federal Workforce Task Force (Task Force) pursuant to Executive
Order 14042.” Id. at 1. Again parroting the Executive Order’s justification for the mandate, the
FAR Council Memorandum recites that EO 14042 “directs agencies to ensure that the parties that
contract with the Federal Government provide adequate COVID-19 safeguards to their workers
performing on or in connection with the contract to decrease the spread of COVID-19, reduce
worker absence, lower labor costs, and improve the efficiency of contractors and subcontractors
at sites where they are performing work.” Id.
The FAR Council Memorandum summarizes the Task Force Guidance, and then notes that
Section 3(a) of EO 14042 directs the FAR Council “to develop a contract clause requiring
contractors and subcontractors at any tier to comply with all guidance for contractor and
subcontractor workplace locations published by the Task Force.” Id. at 2. Pursuant to that
direction, the memorandum provides a contract clause entitled “Ensuring Adequate COVID-19
Safety Protocols for Federal Contractors.” Id. at 4. The clause is short, consisting of only two
substantive provisions, and requires contractors and subcontractors to comply with the Task Force
Guidance (regardless of what it says, and even if it changes over time). The first provision states,
in toto: “The Contractor shall comply with all guidance, including guidance conveyed through
1
Also available at https://www.whitehouse.gov/wp-content/uploads/2021/09/FAR-
Council-Guidance-on-Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf.
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Frequently Asked Questions, as amended during the performance of this contract, for contractor
or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task
Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/.” Id. at 5 The second
provision states, in toto: “The Contractor shall include the substance of this clause, including this
paragraph (d), in subcontracts at any tier that exceed the simplified acquisition threshold, as
defined in Federal Acquisition Regulation 2.101 on the date of subcontract award, and are for
services, including construction, performed in whole or in part within the United States or its
outlying areas.” Id.
Both the FAR Council Memorandum and the Task Force Guidance emphasize that the
Government can change the terms of the Task Force Guidance at any time, with all contractors
and subcontractors subject to the new terms. The Task Force Guidance states that covered
contractors must comply with “any new Guidance where the OMB Director approves the Guidance
and determines that adherence to the Guidance will promote economy and efficiency in Federal
contracting.” Ex. B, at 12–13. The FAR Council’s contract clause likewise states that “[t]he
Contractor shall comply with all guidance, including guidance conveyed through Frequently
Asked Questions, as amended during the performance of this contract….” Ex. D, at 5.
VII. The Federal Contractor Vaccine Mandate’s Disruptive Impact.
The federal contractor vaccine mandate will affect a large portion of the labor force. The
U.S. Department of Labor recognizes that “workers employed by federal contractors” comprise
“approximately one-fifth of the entire U.S. labor force.” Office of Contract Compliance Programs,
Dep’t of Labor, History of Executive Order 11246 (last visited Nov. 4, 2021),
https://www.dol.gov/agencies/ofccp/about/executive-order-11246-history (emphasis added). This
includes similarly large proportions of the labor force in each of the Plaintiff States. These large
proportions matter because a vaccine mandate is likely to lead to mass an exit of a significant
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number of those employees. A recent survey by the Kaiser Family Foundation found that 72
percent of unvaccinated workers say they will quit their jobs if they are subjected to such a
mandate. Chris Isidore & Virginian Langmaid, 72% of unvaccinated workers vow to quit if ordered
to get vaccinated, CNN.COM (Oct. 28, 2021), https://www.cnn.com/2021/10/28/business/covid-
vaccine-workers-quit/index.html. “If the surveyed unvaccinated workers follow through on their
threats to quit, it would lead to somewhere between 5% to 9% of workers leaving their jobs,
depending upon what rules they face.” Id.
Those numbers portend massive disruptions in the economy, with ripple effects throughout
the Plaintiff States, and exacerbation of the pre-existing supply-chain crisis. The Plaintiff States
and their agencies face similar disruptive consequences directly from the mandate. See, e.g., Exs.
F ¶¶ 7–11, J ¶¶ 3, 5, K ¶¶ 7–8, 11–13, N ¶¶ 4–8, O ¶¶ 7–11. And individual citizens by the millions
will face the untenable choice between giving up their ability to make private medical decisions
on the one hand, and losing their jobs on the other.
ARGUMENT
The Court considers four factors in determining whether to grant a preliminary injunction:
“(1) the likelihood of the movant’s success on the merits; (2) the threat of irreparable harm to the
movant in the absence of relief; (3) the balance between that harm and the harm that the relief
would cause to other litigants; and (4) the public interest.” Watkins Inc. v. Lewis, 346 F.3d 841,
44 (8th Cir. 2003) (citing Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981)
(en banc)). All four factors favor Plaintiff States.
I. The Plaintiff States Are Likely To Succeed on the Merits of Their Claims.
The Plaintiff States are likely to succeed on the merits of their claims that (1) the contractor
vaccine mandate exceeds OMB’s and the FAR Council’s statutory authority; (2) the contractor
vaccine mandate is substantively arbitrary and capricious under the Administrative Procedure Act;
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(3) the contractor vaccine mandate is procedurally invalid because it issued without any notice and
comment; and (4) the contractor vaccine mandate is unconstitutional because it exceeds the limits
of Congress’s enumerated powers and infringes on traditional areas of state authority.
A. The Contractor Vaccine Mandate Exceeds the President’s Statutory Authority
Under the Procurement Act.
“The President’s power, if any, to issue [an executive] order must stem either from an act
of Congress or the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579,
585 (1952). The directives in EO 14042 ostensibly stem from the President’s authority under the
Federal Property and Administrative Services Act (“Procurement Act”), 40 U.S.C. § 101 et seq.,
and the President’s ability to delegate his powers to certain federal officials, 3 U.S.C. § 301. See
86 Fed. Reg. 50,985 (issuing EO 14042 “[b]y the authority vested in me as President by the
Constitution and the laws of the United States of America, including the [Procurement Act] and
[3 U.S.C. § 301]”). But EO 14042 exceeds the President’s powers under the Procurement Act,
and the President cannot delegate this power to other federal officials.
The purpose of the Procurement Act “is to provide the Federal Government with an
economical and efficient system for” four enumerated procurement activities: (1) “[p]rocuring
and supplying property and nonpersonal services,” (2) “[u]sing available property,”
(3) “[d]isposing of surplus property,” and (4) “[r]ecords management.” 40 U.S.C. § 101(1)–(4).
To fulfill those purposes, the “President may prescribe policies and directives that the President
considers necessary to carry out” the Procurement Act. Id. § 121(a). Such “policies must be
consistent with” the Procurement Act. Id. The federal contractor vaccine mandate is not.
1. EO 14042 exceeds the President’s power because the federal contractor
vaccine mandate is a “regulation,” not a “policy or directive.”
“[P]olicies and directives” in the Procurement Act describe the President’s power to direct
the exercise of procurement authority throughout the government. They do not authorize the
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President to issue regulations himself. Congress knows how to confer the power to “prescribe
regulations,” as it expressly authorized the GSA Administrator to do so in the same section, but it
failed to give the President that same power. Compare id. § 121(a) (President) with id. § 121(c)
(GSA Administrator); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (“[W]hen
the legislature uses certain language in one part of the statute and different language in another,
the court assumes different meanings were intended.”). Congress has given the President the
power to “prescribe regulations” in other contexts, typically in the realm of foreign affairs and
national defense. See, e.g., 18 U.S.C. § 3496 (“The President is authorized to prescribe regulations
governing the manner of executing and returning commissions by consular officers . . . .”); 32
U.S.C. § 110 (“The President shall prescribe regulations, and issue orders, necessary to organize,
discipline, and govern the National Guard.”). Thus, the Procurement Act does not give the
President the authority to issue regulations.
Yet that is exactly what the President did here. The government acts as a regulator when
“it performs a role that is characteristically a governmental rather than a private role.” See Building
& Const. Trades Council of the Metro. Dist. v. Assoc. Builders & Contractors of
Massachusetts/Rhode Island, Inc., 507 U.S. 218, 229 (1993). For instance, the President acts as a
regulator when he “seeks to set a broad policy governing the behavior of thousands of American
companies and affecting millions of American workers” based not on his views about
“procurement policy” but on his views about “labor policy.” Chamber of Commerce of the U.S. v.
Reich, 74 F.3d 1322, 1337 (D.C. Cir. 1996) (holding that a governmental entity would be acting
as a regulator if it “require[d] all construction contractors doing business with the [government] to
enter into collective bargaining agreements . . . containing [NLRA] § 8(e) pre-hire agreements”).
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In this case, the President is acting as a regulator because he is setting a broad policy
governing the behavior of thousands of American companies and affecting millions of American
workers. See id. He is requiring all federal contractors to agree to a particular contractual
provision promising to follow Task Force Guidance, which in practice imposes a vaccine mandate
on employees of federal contractors. That is regulation—pure and simple—and it is not part of
the President’s Procurement Act powers. 2 That is doubly so since the vaccine mandate is a
regulation based not on the President’s views about what is the best procurement policy, but on
the President’s views about public health. See id. It is thus far, far afield from any power the
President has under the Procurement Act.
2. The federal contractor vaccine mandate is inconsistent with the
Procurement Act’s purpose and outside of its scope.
But even if EO 14042 could be considered a “policy or directive,” it would be unlawful
because the federal contractor vaccine mandate is neither “necessary” nor “consistent with” the
Procurement Act. 40 U.S.C. § 121(a). While the Procurement Act “does vest broad discretion in
the president” to “prescribe policies and directives ‘as he shall deem necessary to effectuate the
provisions’ of the Act,” it does not give the President “unlimited authority to make decisions he
believes will likely result in savings to the government.” Reich, 74 F.3d at 1330. Rather, “[t]he
procurement power must be exercised consistently with the structure and purposes of the statute
that delegates that power.” Id. at 1330–31. Thus, there must be a “nexus between the [policy or
directive] and likely savings to the government.” Id. at 1331. Additionally, presidential orders
issued under the Procurement Act are invalid if in conflict with other federal laws. See, e.g., id. at
2
Because the President does not have this power, he also does not have the authority to
delegate this power to the Task Force or OMB, as he purported to do in EO 14042.
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1324, 1333, 1338–39 (holding that the Procurement Act did not permit a President to issue an
executive order contrary to the NLRA).
Here, the Court should find that the vaccine mandate exceeds the President’s Procurement
Act powers because there is no nexus between the vaccine mandate and likely savings to the
government and because the vaccine mandate conflicts with and is in tension with other federal
laws. Indeed, to conclude to the contrary would conflict with the Act’s meaning.
a) There is no nexus between the vaccine mandate and likely
savings to the government, and so the vaccine mandate is
inconsistent with the Procurement Act’s plain text.
The vaccine mandate has no clear nexus to cost savings to the federal government. On the
contrary, the vaccine mandate is likely to lead to a massive loss of federal contractor employees.
According to a recent survey, 72 percent of unvaccinated workers say that they will quit if their
employers decide to mandate the vaccine. See Isidore & Langmaid, supra. Such mass resignations
will impose drastic hardship on working families throughout the Plaintiff States and cause massive
economic disruption for federal contractors and for the economy at large. They will inevitably
cause staffing shortages for federal contractors and exacerbate supply-chain woes. As a result,
costs of federal contracts would rise and efficiency would fall. Thus, the vaccine mandate is the
antithesis of “economy and efficiency” and has no nexus with likely savings to the government.
The mandate is thus outside the scope of the Procurement Act. See 40 U.S.C. § 121(a) (requiring
the President’s policies and directives to be “consistent with this subtitle”).
b) Because the vaccine mandate conflicts with other federal law,
the vaccine mandate cannot be within the President’s powers
under the Procurement Act.
The vaccine mandate also conflicts with the Procurement Policy Act and so exceeds the
President’s powers under the Procurement Act. See 41 U.S.C. §§ 1301-1303. Specifically, EO
14042 violates the Procurement Policy Act by delegating to OMB and the Task Force the power
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to make a government-wide procurement regulation when that power belongs to the FAR Council
alone.
Congress established the FAR Council in 1988 “to assist in the direction and coordination
of [g]overnment-wide procurement policy and [g]overment-wide procurement regulatory
activities in the [f]ederal [g]overnment.” Office of Federal Procurement Policy Act Amendments
of 1988, Pub. L. No. 100-679, § 4, 102 Stat. 4055, later codified at 41 U.S.C. § 1302(a).
The FAR Council is charged with “issu[ing] and maintain[ing]” a “single, [g]overment-
wide procurement regulation” known as the Federal Acquisition Regulation (“FAR”). 41 U.S.C.
§ 1303(a)(1). That power is exclusive to the FAR Council—no other agency may issue
government-wide procurement regulations. See id. § 1303(a)(2) (“Other regulations relating to
procurement issued by an executive agency shall be limited to . . . regulations essential to
implement Government-wide policies and procedures within the agency[ ] and [ ] additional
policies and procedures required to satisfy the specific and unique needs of the agency.” (emphasis
added)). Yet EO 14042 does exactly that. In violation of the Procurement Policy Act, the order
delegates to OMB and the Task Force the power to make a government-wide procurement
regulation when that power belongs to the FAR Council alone. See EO 14042 § 2(a) (delegating
to OMB and the Task Force the role of developing and approving the vaccine mandate for use in
federal contracts). And it permits the FAR Council to circumvent traditional procedural
requirements for issuing procurement regulations, see 41 U.S.C. § 1707(d), in favor of issuing
rules through “guidance,” see EO 14042 § 3(a).
Moreover, EO 14042, and the FAR Guidance which implements it, allows the Task Force
to change the vaccine mandate whenever it wishes, see EO 14042 § 2(a) (requiring compliance
with the “guidance ... published by” the Task Force); Ex. D, at 5 (requiring compliance with the
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Task Force’s guidance “as amended during the performance of this contract”), without the
agreement of or even notice to the FAR Council and without the notice-and-comment period
required by the Procurement Policy Act, see 41 U.S.C. §§ 1303(a), 1707(a)–(b). To put it another
way, EO 14042 and the FAR Guidance vests in the Task Force authority that, by law, belongs only
to the FAR Council. Again, that circumvents the statutory scheme which Congress created in the
Procurement Policy Act.
Thus, EO 14042, the OMB conclusion that it purports to authorize, and the FAR Guidance
violate the Procurement Policy Act and so cannot be a lawful exercise of authority under the
Procurement Act.
c) Clear-statement rules of statutory construction favor reading
the Procurement Act’s presidential powers as excluding the
power to unilaterally implement a vaccine mandate.
Besides the text of the Procurement Act and the fact that the vaccine mandate violates other
federal law, other tools of statutory interpretation establish that the Procurement Act does not
authorize the federal contractor vaccine mandate.
First, interpreting the Procurement Act to permit the President to impose a vaccine mandate
would disrupt the traditional federal state-balance absent a clear statement that Congress intended
to give the President public health powers through the Procurement Act. “Among the background
principles of construction . . . are those grounded in the relationship between the Federal
Government and the States under our Constitution.” Bond v. United States, 572 U.S. 844, 857–58
(2014). To protect that relationship, “‘it is incumbent upon the federal courts to be certain of
Congress’ intent before finding that federal law overrides’ the ‘usual constitutional balance of
federal and state powers.’” Id. at 858 (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)
(quoting another source)). “[U]nless Congress conveys its purpose clearly, it will not be deemed
to have significantly changed the federal-state balance.” United States v. Bass, 404 U.S. 336, 349
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(1971) (“[W]e will not be quick to assume that Congress has meant to effect a significant change
in the sensitive relation between federal and state criminal jurisdiction.”). “In traditionally
sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement
assures that the legislature has in fact faced, and intended to bring into issue, the critical matters
involved in the judicial decision.” Id.
The States’ police powers are those that “state[s] did not surrender when becoming a
member of the Union under the Constitution.” Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905).
“[T]he police power of a state must be held to embrace . . . such reasonable regulations established
directly by legislative enactment as will protect the public health and the public safety.” Id. This
includes laws concerning compulsory vaccination. Id. at 12, 14, 37-38 (“The safety and the health
of the people of Massachusetts are, in the first instance, for that commonwealth to guard and
protect. They are matters that do not ordinarily concern the national government. So far as they
can be reached by any government, they depend, primarily, upon such action as the state, in its
wisdom, may take . . . .”).
Interpreting the Procurement Act to permit the President to implement a vaccine mandate
for one-fifth of all workers, many of whom work intrastate, would thus dramatically intrude upon
the police power of the States. That implicates this clear-statement rule. See Bond, 572 U.S. at
858 (“We have applied this background principle when construing federal statutes that touched on
several areas of traditional state responsibility.”). But there is no such clear statement. Thus,
reading the Procurement Act to allow the contractor vaccine mandate would mean that the
Procurement Act “displace[s] the public policy of [the States], enacted in [their] capacit[ies] as
sovereign[s]” id. at 865 (internal quotations omitted), “[a]bsent a clear statement of that purpose.”
id. at 866. That it cannot do.
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Second, the Supreme Court requires a clear statement before presuming that Congress has
invoked the outer limits of one of its enumerated powers. “Where an administrative interpretation
of a statute invokes the outer limits of Congress’ power,” the Supreme Court “expect[s] a clear
indication that Congress intended that result.” Solid Waste Agency of N. Cook Cnty. v. U.S. Army
Corps of Engineers, 531 U.S. 159, 172 (2001) (“SWANCC”). “This requirement stems from [the
Court’s] prudential desire not to needlessly reach constitutional issues and [its] assumption that
Congress does not casually authorize administrative agencies to interpret a statute to push the limit
of congressional authority.” Id. at 172-73. The same reasoning applies to the interpretation of
statutes delegating powers to the President (rather than an agency).
Here, interpreting the Procurement Act as empowering the President to enact a vaccine
mandate for one-fifth of the workforce would “invoke[] the outer limits of Congress’ power” under
the Spending Clause or the Commerce Clause. See id. at 172. Indeed, it would exceed those
limits. See infra Part D. Because there is no clear statement permitting that reading, doing so
violates this well-established principle of interpretation.
Third, the sensitive federalism issues involved here, not to mention the billions of dollars
and economic effects of mandating federal contractors vaccinate their employees, demand no less
than a clear statement that the executive branch can do what it did here. See King v. Burwell, 576
U.S. 473, 486 (2015) (noting the need for clear delegations for issues “of deep ‘economic and
political significance’”) (quoting Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014)
(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000))). As it stands,
“the sheer scope of the ... claimed authority ... counsel[s] against” reading the Procurement Act
to permit mandatory vaccination of those whose only connection to a federal contract is working
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in the same location as an employee who is working directly on such a contract. See Ala. Ass’n of
Realtors v. Dep’t of Health & Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam).
Fourth, “where an otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla.
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). “The elementary rule is
that every reasonable construction must be resorted to, in order to save a statute from
unconstitutionality.” Id. “This approach not only reflects the prudential concern that constitutional
issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by
and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that
Congress intended to infringe constitutionally protected liberties or usurp power constitutionally
forbidden it.” Id.
Interpreting the Procurement Act to allow the President to implement a federal contractor
vaccine mandate would “raise serious constitutional problems.” Edward J. DeBartolo, 485 U.S.
at 575. As discussed in Part D, it would violate the Constitution in at least four ways: (1) it would
impose ambiguous conditions on the use of federal relief funds, in violation of the Spending
Clause; (2) it would impose conditions on federal spending that are unrelated to the purposes of
the federal program at issue, namely procurement; (3) it would violate the Tenth Amendment by
commandeering the States’ administrative apparatus for federal purposes; and (4) it would fail to
regulate commerce and instead demand action, in violation of the Commerce Clause. Therefore,
this Court should construe the Procurement Act narrowly—as not permitting the vaccine
mandate—to avoid those serious constitutional problems.
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***
The upshot: nowhere does the Procurement Act permit what the Defendants attempt to do
here. “It would be one thing if Congress had specifically authorized the action that [they have]
taken. But that has not happened.” Ala. Ass’n of Realtors, 141 S. Ct. at 2486. The Procurement
Act does not authorize the vaccine mandate.
B. The Contractor Vaccine Mandate Is Arbitrary and Capricious.
Second, the Plaintiff States are likely to succeed on their claim that the contractor vaccine
mandate is substantively arbitrary and capricious under the Administrative Procedure Act (APA). 3
1. OMB and the FAR Council are “agencies” subject to judicial review under
the APA.
As an initial matter, both OMB and the FAR Council are “agencies” subject to the APA.
See 5 U.S.C. § 702. “[T]he APA ... confers agency status on any administrative unit with
substantial independent authority in the exercise of specific functions.” Soucie v. David, 448 F.2d
1067, 1073 (D.C. Cir. 1971). OMB is an “agency” under the APA and the Soucie test—as the
D.C. Circuit has concluded in a closely related context. Sierra Club v. Andrus, 581 F.2d 895, 902
(D.C. Cir. 1974), rev’d on other grounds, 442 U.S. 347 (1979); see also Meyer v. Bush, 981 F.2d
1288, 1294 (D.C. Cir. 1993); cf. Hyatt v. OMB, 908 F.3d 1165, 1170–74 (9th Cir. 2018)
(entertaining an APA challenge to an OMB action). And to the extent that OMB merely rubber-
stamped the determinations of the Task Force, leaving the Task Force to make binding
determinations about the nature and scope of the vaccine mandate, the Task Force is an “agency”
as well, for the same reasons as OMB. Soucie, 448 F.2d at 1073.
3
Because this is a challenge to “regulation[s] governing a procurement,” the Plaintiff States
properly brought this case as an APA challenge in federal district court. Land Shark Shredding,
LLC v. United States, 842 F. App’x 589, 593 (Fed. Cir. 2021); see also Alphapointe v. Dep’t of
Dep’t of Veterans Affairs, 416 F. Supp. 3d 1, 7 (D.D.C. 2019).
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The FAR Council also meets that requirement. By law, the Council may make
government-wide regulations relating to procurement and oversee procurement regulations issued
by other agencies. See 41 U.S.C. § 1303(a)(1)–(3); Mgmt. Ass’n for Private Photogrammetric
Surveyors v. United States, 492 F. Supp. 2d 540, 544 (E.D. Va. 2007) (calling the FAR Council
“the administrative body charged with administering and overseeing the application of the Federal
Acquisition Regulation”). Those powers “are central to whether an entity wields substantial
independent authority” and is an agency under the APA. Elec. Privacy Info Ctr. v. Nat’l Sec.
Comm’n on Artificial Intelligence, 466 F. Supp. 3d 100, 109 (D.D.C. 2020). Since the FAR
Council possesses them, it is an agency subject to the APA.
2. The contractor vaccine mandate is a “final agency action.”
Nor can there be any dispute that OMB’s conclusion and the FAR Guidance are final
agency action. To be final, an agency’s action must meet two requirements: “First, [it] must mark
the consummation of the agency’s decisionmaking process ... [a]nd second, the action must be
one by which rights or obligations have been determined, or from which legal consequences will
flow.” Bennet v. Spear, 520 U.S. 154, 177–78 (1997) (internal quotations omitted).
OMB’s conclusion that “compliance by Federal contractors and subcontractors with the”
contractor vaccine mandate “will improve economy and efficiency,” 86 Fed. Reg. at 53,629, is the
agency’s “last word” on the issue. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478 (2001)
(quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 586 (1980)). So, too, is FAR’s guidance; the
FAR Council “developed” (past tense) its guidance and then issued it to agencies via the guidance.
Ex. D, at 2. Nothing indicates that either agency will change its mind; there is nothing “tentative
or interlocutory” about their decisions. Sisseton-Wahpeton Oyate of Lake Traverse Reservation v.
U.S. Corps of Eng’rs, 888 F.3d 906, 915 (8th Cir. 2018).
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Both decisions also determine rights and obligations, and are ones “from which legal
consequences will flow.” Bennett, 520 U.S. at 178. Specifically, the decisions “alter the legal
regime” to which federal contractors, subcontractors, and agencies with whom they contract are
“subject.” Id. By operation of EO 14042, those decisions mean that agencies “shall” require
contractors and subcontractors “to comply with” with the vaccine mandate. Exec. Order No.
14,042 § 2(a); see also Ex. D, at 2 (noting that the clause the FAR Council provided requires
contractors or subcontractors “to comply with all guidance” from the Task Force). Those certainly
determine “obligations” and “compel legal consequences” and “affirmative action.” Sisseton-
Wahpeton Oyate, 888 F.3d at 915.
3. The contractor vaccine mandate is arbitrary and capricious.
Under the APA, a court must “hold unlawful and set aside agency action” that is “arbitrary”
or “capricious.” 5 U.S.C. § 706(2)(A). “The APA’s arbitrary-and-capricious standard requires
that agency action be reasonable and reasonably explained.” FCC v. Prometheus Radio Project,
141 S. Ct. 1150, 1158 (2021). Courts must ensure “the agency has acted within a zone of
reasonableness and, in particular, has reasonably considered the relevant issues and reasonably
explained the decision.” Id. “[T]he agency must examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational connection between the facts found and
the choice made.”’ Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). It must also consider the reliance interests of those affected by the regulation,
including the States. See Dep’t of Homeland Security v. Regents of Univ. of Cal., 140 S. Ct. 1891,
1913–15 (2020). And the agency must consider less-disruptive policies in the light of those
interests. Id. Moreover, the agency may not offer pretextual or post hoc explanations of its actions.
SEC v. Chenery Corp., 332 U.S. 194, 196–97 (1947). The contractor vaccine mandate fails to
satisfy any of those criteria for reasoned decision-making.
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First, the mandate is arbitrary and capricious because the agency did not “reasonably
consider[] the relevant issues and reasonably explain[] the decision.” Prometheus Radio, 141 S.
Ct. at 1158. In fact, neither OMB, nor the Task Force, nor the FAR Council provided any
explanation for the decision to impose a vaccine mandate on one-fifth of the Nation’s workforce.
As discussed above, each agency merely parroted—in virtually the same words—the Executive
Order’s perfunctory statement that a contractor vaccine mandate “will decrease the spread of
COVID-19, which will decrease worker absence, reduce labor costs, and improve the efficiency
of contractors and subcontractors at sites where they are performing work for the Federal
Government.” EO 14042 § 1. Compare id., with Ex. B, at 1 (Task Force Guidance), with 86 Fed.
Reg. at 53,692 (OMB Notice), with Ex. D, at 1 (FAR Council Memorandum). No agency provided
any discussion of its reasoning or justification beyond that perfunctory and conclusory statement.
That failure is arbitrary and capricious, per se. Encino Motorcars, LLC v. Navarro, 136 S. Ct.
2117, 2127 (2016) (“Whatever potential reasons the Department might have given, the agency in
fact gave almost no reasons at all. . . . [C]onclusory statements do not suffice to explain [an
agency’s] decision.”).
Second, the mandate is arbitrary and capricious because it “failed to consider important
aspects of the problem” before the agencies. Regents of the Univ. of Calif., 140 S. Ct. at 1910
(quoting Motor Vehicle Manufacturers’ Assn., 463 U.S. at 43); see also Nat’l Ass’n of Home
Builders v. Defs. of Wildlife, 551 U.S. 664, 658 (2007) (an agency decision is arbitrary and
capricious if the agency “entirely failed to consider an important aspect of the problem”). Several
important aspects of the problem should have been obvious to the agencies, including but not
limited to: (1) the risk of negative economic impacts and economic disruption from the prospect
of large-scale resignations and terminations of employees, see, e.g., Isidore & Langmaid, supra;
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(2) the hardships to individual citizens who lose their jobs and to their families; (3) the threat of
disruption to state agencies and State governments; (4) the impact on state sovereignty from
preempting state statutes and regulations that prohibit vaccine mandates; (5) distinctions between
workers with natural immunity, which also provides robust protection against COVID-19 infection
and transmission, and those without natural immunity, see Ex. E., ¶¶ 8–26 (discussing the
differences); (6) the fact that COVID-19 affects different people differently and transmits
differently in different settings; (7) the situation of workers who work in environments with
negligible risk of transmission, such as those who work at home or in outdoor environments; and
many others. Other than merely announcing the policy, the Task Force Guidance, the OMB
Notice, and the FAR Council Memorandum give literally no consideration to any of these
important aspects of the problem. To engage in reasoned decisionmaking, they were required to
at least consider these issues and explain their reasoning, but they did not do so.
Third, the mandate is arbitrary and capricious because it failed to consider less restrictive
alternatives within the ambit of the federal government’s preexisting policy, which eschewed
vaccine mandates altogether. “When an agency rescinds a prior policy, its reasoned analysis must
consider the alternatives that are within the ambit of the existing policy.” Regents, 140 S. Ct. at
1913; see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009) (when changing
policies, “a reasoned explanation is needed for disregarding facts and circumstances that underlay
or were engendered by the prior policy”). Many less restrictive alternatives were evident—
including, for example, exempting workers with natural immunity due to prior COVID-19
infection, exempting workers who telework or work remotely, excluding workers who work in
outdoor environments, and/or imposing varying requirements based on community incidence of
COVID-19 transmission, among many others. The agencies gave no indication that they
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considered these or any other alternatives that would have been less restrictive than the sweeping
vaccine mandate adopted. In fact, they discussed no alternatives at all, but merely accepted and
implemented the policy based on nothing more than EO 14042’s bare assertion that it would be
efficient and economical.
Fourth, the mandate is arbitrary and capricious because the agencies failed to address costs
to the States, including their “legitimate reliance” on the absence of a federal mandate, which
allowed them to control their own workforces and set their own policies regarding vaccine
mandates. See Regents of Univ. of Calif., 140 S. Ct. at 1913. Indeed, the Defendants completely
ignore the costs and injuries to the States, which are a “centrally relevant factor when deciding
whether to regulate.” Michigan v. EPA, 576 U.S. 743, 752–53 (2015). Neither the Task Force
Guidance, nor the OMB Notice, nor the FAR Council Memorandum reflects any awareness that
the government is imposing requirements on the States at all, which is reason alone to find them
arbitrary and capricious. State Farm, 463 U.S. at 43. Indeed, not one of the Defendants considered
any reliance current and future federal contractors had on the lack of mandate; that is, reliance by
the parties most directly affected by the new rule.
Fifth, the sole justification provided for the mandate—i.e., promoting economy and
efficiency in federal procurement by reducing absenteeism and labor costs for federal
contractors—is blatantly pretextual. The mandate did not originate from any determination by the
Task Force, OMB, or the FAR Council that federal contracting faced challenges in economy and
efficiency due to COVID-19-related absenteeism. On the contrary, the mandate originated in a
speech by the President that said literally nothing about economy and efficiency in federal
contracting, and instead focused entirely on imposing a comprehensive federal policy to mandate
vaccination in as many Americans as possible. See Biden Speech, supra. As the White House
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Chief of Staff tweeted at the time, using mandates like the federal contractor mandate was the
“ultimate work-around” for the absence of any legal authority to impose a federal national vaccine
mandate. Callie Patteson, Biden Chief Apparently Admits Vaccine Mandate “Ultimate Work-
Around”, N.Y. POST (Sept. 10, 2021), https://nypost.com/2021/09/10/ronald-klain-retweets-
vaccine-mandate-ultimate-work-around/. In other words, the vaccine mandate has nothing to do
with economy and efficiency, but everything to do with federalizing the public-health response to
the COVID-19 pandemic. Such pretextual reasons are manifestly insufficient under the APA.
Dep’t of Com. v. New York, 139 S. Ct. 2551, 2576 (2019) (“Accepting contrived reasons would
defeat the purpose of the enterprise [of judicial review.]”). Indeed, the agencies’ mantra reciting
the “economy and efficiency” rationale is a quintessential “post hoc rationalization” for the policy
that the President had already chosen and imposed for unrelated reasons. See Regents of the Univ.
of California, 140 S. Ct. at 1909 (holding that it is a “foundational principle of administrative law”
to reject an agency’s “impermissible post hoc rationalizations” for agency action) (quoting
Michigan v. EPA, 576 U.S. at 758).
C. The Contractor Vaccine Mandate Violates the Procurement Policy Act.
In Count 2, Plaintiff States allege that Defendants violated the Procurement Policy Act, 41
U.S.C. § 1707, by bypassing notice and comment. Compl. ¶¶ 98–104. Under that Act, Section
1707 requires that “a procurement policy, regulation, procedure, or form” must go through notice
and comment if it (1) “relates to the expenditure of appropriated funds,” and (2) has either “a
significant effect beyond the internal operating procedures of” the issuing agency or “a significant
cost or administrative impact on contractors or offerors.” 41 U.S.C. § 1707(a)–(b).
The first requirement is satisfied because federal contracts plainly involve the expenditure
of appropriated funds. And the second requirement is satisfied because Defendants’ mandate—
by dictating the personal vaccine choices for millions of Americans (including many who do not
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even work on federal contracts)—has a significant effect beyond the internal operating procedures
of the federal government. In addition, the mandate imposes significant costs and administrative
effects on Plaintiff States and other contractors. Some state agencies will lose federal contracts,
be forced to alter their affected programs, or both. See Exs. F–O (noting some agencies subject to
mandate). Other state agencies will modify or renew their contracts and thus be conscripted into
administering the federal government’s draconian vaccine policy. See id. Either way, States will
face significant costs and administrative impacts.
The only remaining question in deciding whether Section 1707 applies is whether the OMB
Notice and the FAR Guidance are procurement “polic[ies], regulation[s], procedure[s], or
form[s].” 41 U.S.C. § 1707(a)(1). They are. As explained above, both are final agency actions
and thus qualify as “regulations” under Section 1707. But even if they are not “regulations,” they
are surely “policies” or “procedures.” Congress’s choice to separately use the terms “policy,”
“regulation,” and “procedure” side by side indicates its intent to cover a broad class of government
pronouncements (including all manner of guidance). See Bailey v. United States, 516 U.S. 137,
146 (1995) (“We assume that Congress used two terms because it intended each term to have a
particular, nonsuperfluous meaning.”). Black’s Law Dictionary defines “policy” to mean “[a]
standard course of action that has been officially established by an organization,” and it defines
“procedure” to mean “[a] specific method or course of action.” Policy and Procedure, BLACK’S
LAW DICTIONARY (11th ed. 2019). The OMB Conclusion, by approving the Task Force Guidance,
and the FAR Guidance, by implementing the Task Force Guidance, establish an official course of
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action and specific methods for imposing a COVID-19 vaccine mandate through the procurement
process. Thus, they constitute procurement “policies” or “procedures” under Section 1707.
Notably, Defendants’ notice-and-comment failure cannot be excused by the exception in
Section 1707(d), which applies when “urgent and compelling circumstances make compliance
with the requirements impracticable.” 41 U.S.C. § 1707(d). Federal officials invoke that provision
only by designating the action as “temporary” and providing a 30-day comment period. 41 U.S.C.
§ 1707(e). Defendants have not done so here. And even if they had, there is no reason to think
that notice and comment was impracticable. Neither the COVID-19 pandemic nor the availability
of vaccines is a recent development. Defendants have therefore violated Section 1707 by failing
to provide notice and comment. 4
D. The Contractor Mandate Exceeds Congress’s Enumerated Powers and
Unconstitutionally Infringes on the Authority of the States.
In Counts 3, 4, 11, and 12, the Plaintiff States assert that Defendants have unlawfully
usurped their police powers, commandeered them to implement federal policies, violated the Tenth
Amendment, and exceeded the federal spending power and other enumerated powers. Doc. 1, ¶¶
105–12, 169–86. Plaintiffs are likely to prevail on these federalism-related arguments.
“[E]ven in a pandemic, the Constitution cannot be put away and forgotten.” Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020). The Constitution “leaves to the several
States a residuary and inviolable sovereignty, reserved explicitly to the States by the Tenth Amend-
ment.” New York v. United States, 505 U.S. 144, 188 (1992) (cleaned up). As that Amendment
4
To the extent this Court concludes that Defendants’ actions do not involve procurement or
contracting, APA notice-and-comment requirements would apply. See 5 U.S.C. § 553(a)(2)
(exempting from APA notice-and-comment requirements matters “relating to . . . contracts”). In
that event, Plaintiffs would be likely to prevail under Counts 5 and 9, where they assert that the
OMB Conclusion and the FAR Guidance contravene the APA by failing to conduct notice-and-
comment rulemaking. See Compl. ¶¶ 113–20, 154.
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says, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X.
“[T]he police power of a state” includes, above all, the authority to adopt regulations
seeking to “protect the public health,” including the topic of mandatory vaccination. Jacobson,
197 U.S. at 24–25; see also Zucht v. King, 260 U.S. 174, 176 (1922) (“[I]t is within the police
power of a state to provide for compulsory vaccination”) (emphasis added). The States “did not
surrender” these powers “when becoming . . . member[s] of the Union.” Jacobson, 197 U.S. at
25. Thus, in our constitutional order, “[t]he safety and the health of the people . . . are, in the first
instance, for [the States] to guard and protect.” Id. at 38. These matters “do not ordinarily concern
the national government.” Id. So to the extent that health measures like vaccine mandates “can
be [implemented] by any government, they depend, primarily, upon such action as the state, in its
wisdom, may take.” Id.
By seeking to impose their vaccine mandate on millions of state and private employees
who comprise roughly one-fifth of the national workforce, Defendants usurp powers that belong
to the States. As far as Plaintiffs can tell, never before has the federal government attempted to
mandate vaccines on state and private employees—much less millions of them. Often “the most
telling indication of a severe constitutional problem is the lack of historical precedent” for
it. NFIB v. Sebelius, 567 U.S. 519, 549 (2012) (Roberts, C.J.) (quoting another source). That is
certainly true here because Defendants’ unprecedented mandate “invades the province of state
sovereignty reserved by the Tenth Amendment.” New York, 505 U.S. at 155.
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Nothing in the Constitution gives the federal government the power it seeks to exercise.
While Congress has the authority to contract under the Spending Clause, U.S. Const. art. I, § 8, cl.
1, that power does not support Defendants’ mandate for three reasons.
First, Defendants’ mandate fails to “unambiguously” establish the contractual terms.
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). In fact, the new contract
provision that Defendants demand requires contractors, including States, to “comply with all
guidance ... as amended during the performance” of the contract “published by the ... Task
Force.” Ex. D, at 5. Imposing such open-ended contractual requirements defies the clarity that
the Spending Clause requires. See NFIB, 567 U.S. at 584 (“[T]he spending power ... does not
include surprising participating States with post-acceptance ... conditions.”).
Second, Defendants’ mandate is so broad that much of it is not “related to the federal
interest in particular national projects or programs.” Van Wyhe v. Reisch, 581 F.3d 639, 650 (8th
Cir. 2009). Reaching far beyond employees working on federal contracts, the mandate covers
employees who merely support employees working on federal contracts (such as by working on
human resource issues) or who might simply encounter employees working on federal contracts
in a common area at work. Ex. B, at 10–11. The breadth of that demand far exceeds any reasonable
connection to a federal interest in federal programs.
Third, the federal government cannot use the spending power to “commandeer[] a
State’s ... administrative apparatus for federal purposes,” NFIB, 567 U.S. at 577 (Roberts, C.J.),
or “conscript state [agencies] into the national bureaucratic army,” id. at 585. Yet that is exactly
what Defendants are doing. The mandate applies to contracts between the federal government and
state agencies, and Defendants compel those agencies to implement the federal government’s
vaccination policy far beyond the confines of federal contracts to state employees who do not work
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on any such contracts. State agencies will now become administrators of federal COVID-19
vaccine mandates. See Printz v. United States, 521 U.S. 898, 914 (1997).
It is not reasonable or even possible for the States to immediately forego all their federal
contracts, which span many of Plaintiffs’ state agencies. Compl. ¶ 87. The mandate covers “exten-
sions or renewals” or “options” on “existing contracts.” Ex. D, at 2. And the Task Force’s Gui-
dance “strongly encourage[s]” federal agencies to add the mandate to “existing contracts and
contract-like instruments” even before renewals occur. Ex. B, at 5. Indeed, many of Plaintiffs’
agencies have already begun receiving requests to modify existing contracts, and many have been
given short time periods in which to respond. See Exs. G–L, O. Because many of these contracts
are vital to the Plaintiffs, ending them would force the Plaintiffs to abruptly stop or alter important
governmental programs, which would be difficult and painful to do. Affording States only a matter
of weeks to choose between implementing an unlawful vaccine mandate or relinquishing
longstanding federal contracts essential to existing state programs is an obvious attempt to coerce.
Defendants’ unlawful actions will thus directly commandeer States into administering federal
vaccination policy in violation of the Spending Clause.
Just as the Spending Clause does not authorize Defendants’ mandate, neither does the
Commerce Clause. Art. I, § 8, cl. 3. The mandate does not “regulate Commerce.” Id. Rather, it
demands action—in the form of compulsory vaccines—from millions of people. NFIB, 567 U.S.
at 555 (“The Framers gave Congress the power to regulate commerce, not to compel it”). But the
Commerce Clause is not a license to act “whenever enough [people] are not doing something the
[federal] Government would have them do.” Id. at 553. Moreover, Defendants’ mandate does not
merely require activities in the workplace; it intrudes upon a deeply personal health decision—
whether to get vaccinated—that transcends commerce and work issues. “Any police power to
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regulate individuals as such, as opposed to their activities, remains vested in the States” and has
not been given to the federal government. Id. at 557. Defendants have thus exceeded their
authority by attempting to impose their mandate.
Protecting federalism is no empty gesture. “[A] healthy balance of power between the
States and the Federal Government will reduce the risk of tyranny and abuse from either front.”
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). Here, Defendants are usurping the States’ power
in an overbearing quest to mandate COVID-19 vaccines throughout the nation. Vindicating the
Plaintiffs’ federalism claims will “secure[] to citizens the liberties”—namely, the ability to make
important health decisions for themselves—“that derive from the diffusion of sovereign
power.” New York, 505 U.S. at 181.
II. The Balancing of Harms and the Public Interest Support an Injunction.
The remaining Dataphase factors include “(2) the threat of irreparable harm to the movant
in the absence of relief; (3) the balance between that harm and the harm that the relief would cause
to other litigants; and (4) the public interest.” Watkins, Inc., 346 F.3d at 44. Those factors also
favor the States.
A. Absent an Injunction, Plaintiff States Will Suffer Irreparable Harm to Their
Sovereign, Quasi-Sovereign, and Proprietary Interests.
The States will face great irreparable harm if the federal contractor mandate is not enjoined.
Id. This harm includes injuries to their sovereign, quasi-sovereign, and proprietary interests.
These injuries not only establish irreparable harm but also demonstrate that the States have
standing to bring their claims.
First, the States face direct sovereign injuries from the federal contractor mandate. As
noted above, President Biden announced in his speech a clear intention to supersede and preempt
any State policies that differ from his preferred federal policies, vowing that if any States disagree
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with his federal policy, “I’ll use my power as President to get them out of the way.” Biden Speech,
supra. Consistent with this avowal, the Task Force Guidance expressly preempts any state or local
policy that differs from or opposes the federal contractor mandate: “These requirements are
promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.”
Ex. B, at 13. Therefore, if it is allowed to go into effect, the contractor mandate will expressly
supersede state statutes, executive orders, regulations, and other policies that oppose vaccine
mandates or provide State-level protection to individuals to make their own choices about
vaccination. See id.
This includes numerous statutes and other state-level policies of the Plaintiff States. For
example, Missouri has a statute that prohibits public health orders, including vaccine mandates, if
they are not approved by the governing bodies of political subdivisions, Mo. Rev. Stat. § 67.265,
which may be partially preempted if the vaccine mandate goes into effect. In addition, Missouri
has a very robust state Religious Freedom Restoration Act, Mo. Rev. Stat. § 1.302, which the
contractor vaccine mandate preempts by authorizing employers to determine the scope of religious
exemptions to the mandate. See Ex. B, at 5, 9–10.
Other Plaintiff States face similar interference with the implementation of state law. For
example, Alaska’s state constitution recognizes a fundamental right to privacy which includes the
right to make decisions about medical treatment. See Huffman v. State, 204 P.3d 339 (Alaska
2009) (holding held that an individual’s freedom to make medical decisions for themselves is a
fundamental right protected under Article I, Section 22 of the Alaska Constitution). The contractor
vaccine mandate also ostensibly preempts an Alaska statute that broadly protects all Alaskans’
rights to object to COVID-19 vaccines “based on religious, medical, or other grounds,” and that
forbids any person from “requir[ing] an individual to provide justification or documentation to
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support the individual’s decision to decline a COVID-19 vaccine.” 2021 Alaska Sess. Laws ch.
2, § 17 (emphasis added). Similarly, the contractor vaccine mandate ostensibly preempts Arkansas
statutes, including Ark. Code 20-7-143, which is currently in effect and prohibits public entities
from requiring vaccines, and Ark. Code 11-5-118, which will go into effect in January and requires
private employers (including contractors) give employees a testing option in lieu of vaccination.
The contractor vaccine mandate also ostensibly preempts a recently enacted Montana statute that
generally forbids employers in that State “to refuse employment to a person, to bar a person from
employment, or to discriminate against a person in compensation or in a term, condition, or
privilege of employment based on the person’s vaccination status.” Mont. Code Ann. § 49-2-
312(1)(b).
Preempting, and thus effectively invalidating, duly enacted State statutes inflicts per se
irreparable injury on the States as sovereigns. “Prohibiting the State from enforcing a statue
properly passed ... would irreparably harm the State.” Org. for Black Struggle v. Ashcroft, 978
F.3d 603, 609 (8th Cir. 2020); see Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018) (“[T]he
inability to enforce its duly enacted plan clearly inflicts irreparable harm on the State.”);
Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers) (“Any time” a State is
blocked “from effectuating statutes enacted by representatives of its people, it suffers a form of
irreparable injury.”) (citing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345,
1351 (1977) (Rehnquist, J., in chambers)). When the State is blocked from implementing its
statutes, “the State necessarily suffers the irreparable harm of denying the public interest in the
enforcement of its law.” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,
734 F.3d 406, 419 (5th Cir. 2013); Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir.
1997). The vaccine mandate injures the Plaintiff States’ sovereign interest in exercising their own
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police power. And it does so in an area—public health—where the traditional authority of the
States is paramount and the federal Government possesses no enumerated power.
Second, the States face significant injuries to their quasi-sovereign or parens patriae
interests in protecting the rights of substantial segments of their population. As noted above,
“workers employed by federal contractors” comprise “approximately one-fifth of the entire U.S.
labor force.” Office of Compliance Contract Programs, supra. This includes millions of workers
in the Plaintiff States. See id. As the Supreme Court has recognized, the States have “a quasi-
sovereign interest in the health and well-being—both physical and economic—of its residents in
general.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 607 (1982).
The State’s interest applies when a policy affects a “sufficiently substantial segment of its
population,” especially where an alleged injury to the health and welfare of [the States’] citizens
… is one that the State, if it could, would likely attempt to address through its sovereign lawmaking
powers.” Id. As noted above, several States have enacted statutes to protect their citizens from
vaccine mandates. The States have a quasi-sovereign interest in preventing the manifest
irreparable injury to their millions of citizens who face a Hobson’s choice between making their
own decisions or losing their jobs. The imposition of such a choice on millions of citizens of the
Plaintiff States, “for even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976).
Third, the States face irreparable injury to their proprietary interests. As Justice Scalia has
observed, “a regulation later held invalid almost always produces the irreparable harm of
nonrecoverable compliance costs.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994)
(Scalia, J., concurring). The States will incur direct pocketbook injuries because the Task Force
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Guidance directs employees to obtain documentation of vaccination from state and local public-
health agencies. See Ex. B, at 9.
In addition, the States face economic disruption from widespread resignations due to the
unpopular vaccine mandates, which will exacerbate the supply-chain crisis, disrupt their
economies, and interfere with their revenue collection efforts. As noted above, 72 percent of
unvaccinated workers indicate that they will give up their jobs rather than complying with a
vaccine mandate. See Kaiser Family Foundation Survey (Oct. 28, 2021),
https://www.kff.org/coronavirus-covid-19/press-release/1-in-4-workers-say-their-employer-
required-them-to-get-a-covid-19-vaccine-up-since-june-5-of-unvaccinated-adults-say-they-left-a-
job-due-to-a-vaccine-requirement/. In addition, the States qua federal contractors and employers
face disruption in their day-to-day operations as they are confronted with the prospect of losing
significant numbers of employees. In Missouri, for example, it is widely anticipated that vaccine
mandates will result in widespread resignations and critical staffing shortages in the health-care
sector, 5 and Missouri’s agencies anticipate similar disruption in their own workforces. See Exs.
F, N–O. Other Plaintiff States face similar issue. See, e.g., Exs. J–L. If allowed to go into effect,
many States and their agencies will experience staffing shortages and disruption of services from
the vaccine mandate—which will injure their sovereign and proprietary interests.
5
See, e.g., ‘Dangling by a thread’: Nursing home industry warns of staff exodus over vaccine
mandates, MO. INDEP. (Sept. 15, 2021), at https://missouriindependent.com/2021/09/15/dangling-
by-a-thread-nursing-home-industry-warns-of-staff-exodus-over-vaccine-mandates/; Missouri
Health Care Association says vaccine mandate will worsen staffing shortage, FOX 2 NEWS (Sept.
14, 2021), at https://fox2now.com/news/missouri/missouri-health-care-association-says-vaccine-
mandate-will-worsen-staffing-shortage/; Missouri hospital fears staff may quit over Biden vaccine
mandate, KAN. CITY STAR (Oct. 14, 2021), at https://www.kansascity.com/news/coronavirus/
article254948037.html; see also, e.g., As Vaccine Deadlines Approach, Hospitals Fear Staffing
Shortages Will Occur, NPR.org (Sept. 27, 2021), at https://www.npr.org/sections/coronavirus-
live-updates/2021/09/27/1041047608/vaccine-deadlines-hospitals-fear-staffing-shortages
(detailing similar concerns nationwide).
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B. Blocking the Enforcement of the Unlawful and Unconstitutional Mandate Will
Inflict No Cognizable Harm on the Federal Government.
On the flip side, preventing the enforcement of an unlawful mandate will inflict no
cognizable injury on the federal Government. The Government has no valid interest in violating
the law by “the perpetuation of unlawful agency action.” League of Women Voters of U.S. v.
Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (“There is generally no public interest in the perpetuation
of unlawful agency action.”); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir.
2013) (recognizing that government officials “do[] not have an interest in the enforcement of an
unconstitutional law”); Make Liberty Win v. Ziegler, 478 F.Supp.3d 805, 812 n.6 (W.D. Mo. 2020)
(holding that “a governmental entity ‘has no legitimate interest in enforcing an unconstitutional
ordinance’”) (quoting KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir.
2006)).
C. The Public Interest Strongly Favors an Injunction.
Finally, the public interest strongly favors an injunction against the enforcement of the
Administration’s unlawful and unconstitutional mandate. When the party opposing relief is the
Government, the third factor “merge[s]” with the public-interest factor. Nken v. Holder, 556 U.S.
418, 436 (2009). Here, where the Government faces no cognizable harm from an injunction, the
public interest favors its entry. Indeed, “our system does not permit agencies to act unlawfully
even in pursuit of desirable ends.” Ala. Ass’n of Realtors, 141 S. Ct. at 2490; see League of Women
Voters, 838 F.3d at 12 (“There is generally no public interest in the perpetuation of unlawful
agency action.”).
The public interest also strongly favors vindicating the traditional balance of power
between the federal government and the States, which Defendants’ unlawful mandate threatens to
disrupt. The allocation of governmental powers within the federal system undergirds the
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Constitution’s charter for responsive, accountable, and limited government. “The federal system
rests on what might at first seem a counterintuitive insight, that ‘freedom is enhanced by the
creation of two governments, not one.’” Bond v. United States, 564 U.S. 211, 220-21 (2011)
(quoting Alden v. Maine, 527 U.S. 706, 758 (1999)). “[F]ederalism secures to citizens the liberties
that derive from the diffusion of sovereign power.” Id. at 221 (quoting New York, 505 U.S. at
181). “Federalism also protects the liberty of all persons within a State by ensuring that laws
enacted in excess of delegated governmental power cannot direct or control their actions.” Id.
Moreover, “federalism enhances the opportunity of all citizens to participate in representative
government.” FERC v. Mississippi, 456 U.S. 742, 789 (1982) (O’Connor, J., concurring in part
and dissenting in part). By preserving room for experimentation in the States, federalism also
supports policy innovation that can address many of society’s most pressing problems. New State
Ice Co. v. Liebmann, 285 U.S. 262, 310-11 (1932) (Brandeis, J., dissenting). “Just as the separation
and independence of the coordinate branches of the Federal Government serve to prevent the
accumulation of excessive power in any one branch, a healthy balance of power between the States
and the Federal Government will reduce the risk of tyranny and abuse from either front.” Gregory,
501 U.S. at 458.
The federal contractor vaccine mandate directly implicates those principles of federalism.
It involves unprecedented federal overreach in purporting to dictate the private medical decisions
of millions of Americans—in an area that falls within the States’ traditional zone of authority. It
deliberately seeks to displace state authority and replace it with federal power in an area where the
federal government has no enumerated power or mandate in the Constitution to act. In America,
the public interest favors federalism, and it favors freedom. The Court should enjoin Defendants’
unlawful mandate.
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CONCLUSION
The Court should grant Plaintiffs’ motion for a preliminary injunction, and enter an
injunction preventing Defendants from taking any action to implement or enforce the unlawful
federal contractor vaccine mandate.
Dated: November 4, 2021 Respectfully submitted,
DOUGLAS J. PETERSON ERIC S. SCHMITT
Attorney General of Nebraska Attorney General of Missouri
/s/ James A. Campbell /s/ Justin D. Smith
James A. Campbell* Justin D. Smith, #63253MO
Solicitor General of Nebraska Deputy Attorney General of Missouri
Office of the Nebraska Attorney General Michael E. Talent, #322220CA
2115 State Capitol Deputy Solicitor General
Lincoln, NE 68509 Missouri Attorney General’s Office
(402) 471-2686 Post Office Box 899
Jim.Campbell@nebraska.gov Jefferson City, MO 65102
Counsel for Plaintiffs (573) 751-0304
Justin.Smith@ago.mo.gov
Counsel for Plaintiffs
*Admission application forthcoming
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TREG R. TAYLOR
Attorney General of Alaska
/s/ Cori Mills
Cori M. Mills
Deputy Attorney General of Alaska
Alaska Department of Law
1031 W. 4th Avenue, Suite 200
Anchorage, AK 99501-1994
(907) 269-5100
Cori.Mills@alaska.gov
Counsel for State of Alaska
LESLIE RUTLEDGE
Arkansas Attorney General
/s/ Vincent M. Wagner
Vincent M. Wagner
Deputy Solicitor General
Office of the Arkansas Attorney General
323 Center Street, Suite 200
Little Rock, Arkansas 72201
(501) 682-8090
vincent.wagner@arkansasag.gov
JEFFREY S. THOMPSON
Solicitor General
SAMUEL P. LANGHOLZ
Assistant Solicitor General
Office of the Iowa Attorney General
1305 E. Walnut Street
Des Moines, Iowa 50319
(515) 281-5164
(515) 281-4209 (fax)
jeffrey.thompson@ag.iowa.gov
sam.langholz@ag.iowa.gov
Counsel for State of Iowa
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AUSTIN KNUDSEN
Attorney General of Montana
KRISTIN HANSEN
Lieutenant General
DAVID M.S. DEWHIRST
Solicitor General
CHRISTIAN B. CORRIGAN
Assistant Solicitor General
Office of the Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
406-444-2026
David.Dewhirst@mt.gov
Christian.Corrigan@mt.gov
Counsel for State of Montana
JOHN M. FORMELLA
New Hampshire Attorney General
/s/ Anthony J. Galdieri
Anthony J. Galdieri
Solicitor General
NEW HAMPSHIRE DEPARTMENT OF JUSTICE
33 Capitol Street
Concord, NH 03301
Tel: (603) 271-3658
Anthony.J.Galdieri@doj.nh.gov
Counsel for State of New Hampshire
WAYNE STENEHJEM
Attorney General of North Dakota
/s/ Matthew A. Sagsveen
Matthew A. Sagsveen
Solicitor General
State Bar ID No. 05613
Office of Attorney General
500 North 9th Street
Bismarck, ND 58501-4509
Telephone (701) 328-3640
Facsimile (701) 328-4300
masagsve@nd.gov
Counsel for State of North Dakota
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JASON R. RAVNSBORG
South Dakota Attorney General
/s/ David M. McVey
David M. McVey
Assistant Attorney General
1302 E. Highway 14, Suite 1
Pierre, SD 57501-8501
Phone: 605-773-3215
E-Mail: david.mcvey@state.sd.us
Counsel for State of South Dakota
BRIDGET HILL
Wyoming Attorney General
/s/ Ryan Schelhaas
Ryan Schelhaas
Chief Deputy Attorney General
Wyoming Attorney General’s Office
109 State Capitol
Cheyenne, WY 82002
Telephone: (307) 777-5786
ryan.schelhaas@wyo.gov
Attorneys for the State of Wyoming
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CERTIFICATE OF SERVICE
I hereby certify that, on November 4, 2021, a true and correct copy of the foregoing and
any attachments were filed electronically through the Court’s CM/ECF system, to be served on
counsel for all parties by operation of the Court’s electronic filing system and to be served on those
parties that have not appeared who will be served in accordance with the Federal Rules of Civil
Procedure by mail or other means agreed to by the party.
/s/ Justin D. Smith
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