“When all you have is a hammer every problem looks like a nail” as the old saying goes. For the Federal Government, there appears to be no statute the Office of Legal Counsel can find that does not allow it to hammer a vaccine mandate on the populace upon threat of loss of their livelihood. This week NCLA, in Vanderstelt v. Biden, filed a class action in the Western District of Michigan to enjoin the Government from enforcing this “mandate.”

The Government relied on the Federal Property and Administrative Services Act (“Procurement Act”) of 1949 created “to provide the Federal Government with an economical and efficient system for” procurement. 40 U.S.C. § 101. There were other statutes that make clear that Congresses’ main concern in procurement is to open up the entire panoply of the vast American economy to the Federal Government. It was not implemented to control American workers’ health care decisions.

Nonetheless, the President issued Executive Order 14042 creating a Task Force to direct the Federal Government’s anti-Covid activities. That Task Force then created “guidance” telling all the agencies what to do. On September 24, 2021, the Task Force issued guidance that requires all “covered contractor employees” to be fully vaccinated by December 8, 2021. Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sep. 24, 2021) (“Task Force Guidance”) (Attachment B). The term “covered contractor employees,” “includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” Those deadlines were later changed but the directives remain.

Action on these mandates is happening in Courts all over the country. Today in the Supreme Court the OSHA vaccine mandate and the health care workers vaccine mandate are before the Supreme Court on preliminary injunction. The Supreme Court is, in part, reviewing the 6th Circuit’s vacating a stay on the OSHA vaccine mandate that the 5th Circuit had put in place. The panel, with a spirited dissent by Judge Joan Larsen, determined that the OSHA statute likely gave the Department of Labor the power to require all employers who have more than 100 employees to make sure they are all vaccinated. Well, if the federal government is empowered to have any corporation fire its employees if they are not vaccinated surely it can force corporations it contracts with to do so? This case must be a hopeless effort in the 6th Circuit? A Man of La Mancha tilting at windmills given this “clear precedent?”

Not so fast! The same 6th Circuit, but a different three-judge panel, upheld a stay of the federal contractor mandate two days after NCLA filed suit on the issue! This time Judges Suhrheinrich and Bush over a spirited dissent by Judge Cole upheld a stay of the federal contractor vaccine mandate. In fact, the majority cited the OSHA case in their opinion favorably. I think if done on twitter this would be called “subtweeting.” The court in the Contractor Mandate case even cited Jacobsen v. Massachusetts, to cast doubt upon, rather than uphold a vaccine mandate! This is a judicial jujitsu one does not see every day.

What the Court said was that health and safety are normally and in the first instance the provenance of the states. That is why Jacobsen upheld Massachusetts’ smallpox vaccine mandate law. The Contractor Mandate by the Federal Government, on the other hand, impinged on these state duties and relied on laws that did not clearly grant such power to the agency. The Court then went through all the standards for obtaining injunctive relief and said the Government was unlikely to win on any issue! It was not likely to win on the argument that the States could not bring this case because they all had the right to defend their sovereign rights. It was not going to win on the merits because the Procurement Act provided no such power. It could not show it was harmed by the stay because it had already delayed the OSHA mandate which is similar for a month and a half so how could there be much harm to it, and in any event, another court in Georgia had stayed the whole mandate nationwide anyway. The plaintiffs, States, and sheriff offices that contracted with the Federal Government would be badly harmed as they lost employees and had to suffer irrecoverable compliance costs. Finally, the public interest was “equivocal at best.” The benefits of increased vaccination may be outweighed by the contraction of an already overburdened supply chain.

The stark differences between Democrat- and Republican-appointed judges need to be solved by the Supreme Court. To my knowledge, no Democrat-appointed judge has struck down a vaccine mandate for failure of federal power under any statute (as opposed to religious exemptions). Judge Roberts’s claim that there are no Republican or Democratic judges is being put to the test here. On the role of the states and the nature of federal power, I cannot find any Democrat-appointed appellate judge who has sided with a challenger to federal power. The 6th Circuit is apparently riven over the issue. I had predicted that the 6th Circuit would not lift the 5th Circuit’s OSHA stay precisely because of the overpowering reluctance of most appellate judges to teach litigants the lesson of “different court, different result” in the same case. Now it is the same court, similar case, different result. Those litigants who asked for an en banc hearing on the OSHA vaccine mandate are being proved prescient.