5th Circuit blocks vaccine mandate for federal contractors.

On Monday, a three-judge panel of the U.S. Court of Appeals for the 5^th Circuit ruled 2–1 that President Joe Biden lacked authority to issue an executive order imposing a requirement on companies with whom the U.S. government contracts that employees be vaccinated against COVID-19, affecting thousands of companies and up to 25 percent of the U.S. workforce.

Responding to the demands of Louisiana, Indiana, and Mississippi, the 5^th Circuit kept in place a ban on the implementation of Biden’s executive order on the grounds that the president lacked authority to impose this requirement, and that the order violated an obscure-sounding administrative law principle: the major questions doctrine. Monday’s ruling, Louisiana v. Biden, has far-reaching consequences for federal contractors, but its legal substance also has stark and serious consequences for American law.

Federal agencies make and implement rules under authority that Congress has granted under statute. When a statute is ambiguous, courts have traditionally deferred to the agency’s interpretation of it, since agencies have much more expertise than federal judges. Courts used to invoke the major questions doctrine infrequently, as a narrow exception for extraordinary cases. But in recent years, federal courts’ invocations of this doctrine have vastly increased. They are increasingly unwilling to defer to agency interpretations on issues involving substantial “economic or political significance.” In cases like 2000’s Food & Drug Admin. v. Brown & Williamson Tobacco Corp and 2020’s West Virginia v. Environmental Protection Agency, the Supreme Court has been very vocal in demanding clear congressional authority for policymaking on issues of major economic and political significance.

In these decisions, conservative justices spoke of a need for agencies to be “accountable,” since they are run by unelected experts who answer to the president rather than to the American people. A key purpose of the major questions doctrine is to prevent bureaucrats from rewriting the law, because they can’t be voted out of office. But in Louisiana v. Biden, the 5^th Circuit extended this doctrine to the president himself. The case involves an executive order that Biden issued in 2021 that would require the federal government to include a clause in contracts with companies requiring employees to be vaccinated against COVID-19.

The 5th Circuit’s expansion of the major questions doctrine is unwarranted, unnecessary, and dangerous to democracy.

The Justice Department argued that Biden issued this order under his authority pursuant to the Presidential Procurement Act, in his role as the purchaser of services, to promote economy and efficiency. It also analogized this contracting requirement to the vaccine mandate imposed on most hospital workers—a rule that the Supreme Court upheld earlier this year.

Judge Kurt Engelhardt, joined by Judge Don Willett—both Donald Trump nominees—rejected these arguments in the majority opinion. Engelhardt reasoned that under the major questions doctrine, Congress had not clearly authorized Biden’s vaccine mandate. Although the major questions doctrine had never been extended beyond the agency context to encompass presidential policymaking under executive orders, the majority defended this novel application for two reasons: First, the Supreme Court had never explicitly limited the major questions doctrine to agencies rather than the president; and second, the president is responsible for the executive branch’s actions under Article II of the U.S. Constitution, suggesting that delegations to agencies and the president should be treated the same. Engelhardt also stated that implementing Biden’s order would set precedent penetrating beyond the contractor workplace into the realm of private health, affecting employee behavior.

Judge James Graves dissented on the grounds that his colleagues erred in extending the major questions doctrine to presidential executive orders. Noting that the Procurement Act had frequently been used in social policymaking, Graves observed that Biden’s order was in line with the act’s first use in 1965: implementing anti-discrimination provisions forbidding contractors from discriminating on the basis of race, creed, color, national origin—a use which the 5^th Circuit subsequently upheld. Graves also compared Biden’s order to a second prior Procurement Act case requiring federal contractors to electronically verify their employees were authorized to work in the U.S. Like the e-verify requirement, Graves asserted, Biden’s order requiring federal contractors to verify employees had COVID vaccinations did not govern employees’ conduct but merely imposed requirements on employers.

Finally, Graves observed that Biden’s executive order mirrored current “mainstream” policies of private employers requiring employee vaccinations, analogizing the mandate to other health measures like regulating smoking at federal workplaces. “Just like requiring vaccine mandates,” he wrote, “the reason to prohibit smoking while at a federal facility is to prevent dangerous disease from spreading, whether it be COVID or harms from secondhand smoke, which hampers the economy and efficiency of federal contractors’ operations.”

As Graves noted, the president “does not suffer from the same lack of political accountability that agencies may, particularly when the President acts on a question of economic and political significance.” Unlike a federal agency, the president is elected and therefore accountable to U.S. citizens—a core difference in whether it is appropriate to extend that major questions doctrine to presidential executive orders. Moreover, the 5^th Circuit majority did not—and could not—cite to another case where the major questions doctrine had been extended to a presidential executive order. That federal courts had never ventured into this forbidding territory, Graves suggested, is tantamount to a default understanding that the doctrine simply does not extend to that context.

Graves is right. The 5^th Circuit’s expansion of the major questions doctrine is unwarranted, unnecessary, and dangerous to democracy. Old doctrines can be used for new tricks—but we need to be very careful in such contexts, lest aggressive judicial incursions into executive policymaking powers undermine settled legal doctrine. The overextension of the major questions doctrine is also symptomatic of other recent attempts to shift power from the executive to the judicial branch. The 5^th Circuit opinion was issued at a time when courts are making headlines by using settled doctrine in new ways, seemingly to impose ideological objectives; witness, for example, the rejection of stare decisis in the overturning of Roe v. Wade in June. These acts put courts—and the legal principles they interpret and enforce—on increasingly shaky ground, and threaten to undermine fragile public trust. We must remember that federal judges, like federal agencies, are also unelected. But unlike bureaucrats, judges serve for life.

It should make us uneasy when federal courts apply well-settled doctrine in novel contexts. As it is increasingly forced to explore territories unknown, U.S. law had best meander cautiously along, in the tradition of its pioneer forbears, cautiously guiding the judicial wagon and its precious cargo along well-worn grooves. Applying doctrines in radically different contexts can be irresponsible judicial activism—the equivalent of sending that wagon hurtling off a cliff, to the peril of all.