RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0002p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ COMMONWEALTH OF KENTUCKY, et al., │ Plaintiffs-Appellees, │ > No. 21-6147 │ v. │ │ JOSEPH R. BIDEN, in his official capacity as President │ of the United States of America, et al., │ Defendants-Appellants. │ ┘ On Motion for Stay. United States District Court for the Eastern District of Kentucky at Frankfort. 3:21-cv-00055—Gregory F. Van Tatenhove, District Judge. Decided and Filed: January 5, 2022 Before: SUHRHEINRICH, COLE, and BUSH, Circuit Judges. _________________ COUNSEL ON MOTION FOR STAY: Anna O. Mohan, David L. Peters, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. ON RESPONSE: Barry L. Dunn, Matthew F. Kuhn, Brett R. Nolan, Alexander Y. Magera, Michael R. Wajda, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Benjamin M. Flowers, Carol O’Brien, May Davis, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, James R. Flaiz, GEAGUA COUNTY PROSECUTOR’S OFFICE, Chardon, Ohio, Brando J. Smith, Dianna Baker Shew, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. ON AMICUS BRIEF: Rachel L. Fried, Jessica Anne Morton, Jeffrey B. Dubner, JoAnn Kintz, DEMOCRACY FORWARD FOUNDATION, Washington, D.C., for Amici Curiae. BUSH, J., delivered the opinion of the court in which SUHRHEINRICH, J., joined, and COLE, J., joined in part. COLE, J. (pp. 34–39), delivered a separate dissenting opinion. No. 21-6147 Commonwealth of Ky., et al. v. Biden Page 2 _________________ OPINION _________________ JOHN K. BUSH, Circuit Judge. In 1949, Congress passed a statute called the Federal Property and Administrative Services Act (“Property Act”) to facilitate the “economical and efficient” purchase of goods and services on behalf of the federal government. See 40 U.S.C. § 101. The Property Act serves an uncontroversial purpose; who doesn’t want the government to be more “economical and efficient”? Yet that laudable legislative-branch prescription, in place for the last seventy years, has recently been re-envisioned by the executive. In November 2021, the Safer Federal Workforce Task Force, under the supposed auspices of the Act, issued a “Guidance” mandating that the employees of federal contractors in “covered contract[s]” with the federal government become fully vaccinated against COVID-19.1 That directive sweeps in at least one-fifth of our nation’s workforce, possibly more. And so an act establishing an efficient “system of property management,” S. Rep. 1413 at 1 (1948), was transformed into a novel font of federal authority to regulate the private health decisions of millions of Americans. In response, three states (Ohio, Kentucky, and Tennessee) and two Ohio sheriffs’ offices filed suit. They collectively alleged that nothing in the Property Act authorizes the contractor mandate, that the contractor mandate violates various other federal statutes, and that its intrusion upon traditional state prerogatives raises serious constitutional concerns under federalism principles and the Tenth Amendment. The district court agreed. It enjoined enforcement of the contractor mandate throughout Ohio, Kentucky, and Tennessee. It also denied the subsequent motion of the federal-government defendants2 to stay the injunction pending appeal. The …
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