Joe Biden’s executive orders continue to die on the appellate-court vine, especially in the Fifth Circuit. Late yesterday, a 2-1 decision kept an injunction in place against Biden’s order that all federal contractors get COVID vaccines to enter their workplaces.

It’s the latest pandemic mandate struck down by the courts, and a common theme runs through all of these decisions. Courts aren’t buying an imperial presidency untethered from explicit congressional grants of authority:

A U.S. appeals court on Monday said the White House could not require federal contractors to ensure that their workers are vaccinated against COVID-19 as a condition of government contracts.

The U.S. government has contracts with thousands of companies, and courts have said the issue could affect up to 20% of U.S. workers.

A panel of the 5th Circuit Court of Appeals voted 2-1 to uphold a lower court decision that blocked President Joe Biden’s September 2021 contractor vaccine executive order in those states after Louisiana, Indiana, and Mississippi brought suit to seek invalidation of the mandate.

It’s important to remember that this case deals with private sector employees, not federal government workers. The executive branch does have the authority to set working conditions in its own workplaces, limited by the obvious laws (the Constitution especially) and the need to work within collective-bargaining contracts. In this mandate, Biden attempted to force private-sector companies that provide goods and services to the federal government to impose vaccination requirements on their own workforces, and claimed that the Procurement Act provided Biden with that authority and jurisdiction.

The Fifth Circuit majority rejected that argument, noting it would grant vast authority to as much as one-fifth of the American workforce. The Biden administration attempted to argue that Barack Obama’s Sick Leave order, adopted without challenge, provided a precedent. The majority points out that no precedent exists when unchallenged, and then pointed out that the Sick Leave order applied to employers rather than the behavior and choices of the employed:

Again, though, the Sick Leave order was never considered by a federal court. More significantly, a vaccine mandate is “strikingly unlike” the sick leave policy or any other Procurement Act exercises for several reasons, not least of which is that “[a] vaccination … ‘cannot be undone at the end of the workday.’” NFIB, 142 S. Ct. at 665 (quoting In re MCP, 20 F.4th at 274) (Sutton, C. J., dissenting)). Most significantly, unlike the non-discrimination, E-Verify, Beck rights, and sick leave orders, which govern the conduct of employers, the vaccine mandate purports to govern the conduct of employees – and more than their conduct, purports to govern their individual healthcare decisions.39

To allow this mandate to remain in place would be to ratify an “enormous and transformative expansion in” the President’s power under the Procurement Act. Util. Air Regul. Grp., 573 U.S. at 324. Under Supreme Court precedent, this Court cannot permit such a mandate to remain in place absent a clear statement by Congress that it wishes to endow the presidency with such power.40

The majority also offered a hypothetical if courts endorsed this arrogation of authority:

Imagine that the President had issued an alternative but similar executive order. In this order, to “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,”41 the President instructed executive agencies to incorporate a clause into all contracts specifying that all contractors and subcontractors “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.”42 This hypothetical order, however, would instruct the Task Force to issue guidance relating to the dangers of tobacco, and this Task Force would issue guidance requiring that all covered contractors ensure that all covered contractor employees refrain from smoking or from being in the presence of smoking. As we now know better than ever, smoking and exposure to second-hand smoke contribute to significant and lasting health issues. It is no stretch at all to say that contractual requirements that all employees of federal contractors refrain from smoking or being in the presence of smoking at all times would result in a gain to economy and efficiency in federal contracting.43 Nor would it be much different than this mandate, which likewise makes demands of individuals inside and outside the workplace. This order could certainly pass the “close nexus” test already discussed, and yet it would undoubtedly strike reasonable minds as too great a stretch under the Procurement Act.

The court then added in the major-questions doctrine, and said this claim of authority should and does generate instant skepticism. And an examination of the government’s case does not alleviate that skepticism, but only confirms its necessity:

“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”49 Util.Air Regul. Grp., 573 U.S. at 324 (quoting Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 123 (2000)). As the Government’s brief makes clear, questions surrounding the vaccine and the pandemic generally are undoubtedly of “vast economic and political significance.” Id. Congress has not spoken clearly to authorize such a dramatic shift in the exercise of the President’s power under the Procurement Act. Nor are historical exercises of that power sufficient to demonstrate a long-standing understanding that the Procurement Act could be used in this way. The President’s use of procurement regulations to reach through an employing contractor to force obligations on individual employees is truly unprecedented. As such, Executive Order 14042 is unlawful, and the Plaintiff States have consequently demonstrated a strong likelihood of success on the merits.50

But what of the government interest in handing the acute emergency of the pandemic? To this, the court responds: what pandemic? They quote none other than Biden himself to cut off his administration’s argument for compelling need:

The Government summarily dismisses the district court’s analysis of the balance of harms and the public interest, noting that “[d]elaying implementation of the Executive Order will lead to productivity losses in the performance of federal contracts from schedule delays as well as leave and health care costs for workers who are sick, isolating, or quarantined.” As “the virus continues to pose complex and dynamic challenges to the delivery of services to the American people,” the Government continued, “[h]ow to address the evolving challenges the virus poses … is a question best left to the President … not to unelected courts.” In the eyes of the President, however: “The pandemic is over. If you notice, no one’s wearing masks. Everybody seems to be in pretty good shape.”

D’oh!

By the way, the court never does get to one of the core issues in this mandate — the fact that the extant vaccines neither stop transmission nor uptake. They do have a demonstrated positive effect in minimizing acute and severe cases of COVID, but that’s not the issue in workplace vaccine requirements. The only reason to impose such an order would be to stop transmission of an infectious disease, which none of the vaccines actually do. The only effect is personal and individual, and so the choice should be personal as well — just as with the tobacco analogy the Fifth Circuit wisely uses for demonstration.

The administration is fighting a battle they will lose on multiple fronts, in other words. They can appeal this to the Supreme Court, but that’s likely to deliver the same result in an ironclad historical precedent. Unlike the Academia bailout, Biden has no real political interest in fighting this out with the Supreme Court, and thus we may have seen the last of this battle.