“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.
Trump Sixth Circuit Judge John Bush wrote a 2-1 decision extending a lower court preliminary injunction against the Biden Administration requirement that federal contractors ensure that their workers are vaccinated against COVID-19 as applied to Kentucky, Ohio, and Tennessee, denying a motion by the government to stay the injunction pending appeal. The January 2022 decision was in Commonwealth of Kentucky v Biden.
As part of the Biden Administration’s Path out of the Pandemic effort, the administration promulgated an important requirement that corporations and others who contract and do business with the federal government ensure that their workers on federal projects are vaccinated against COVID-19. The requirement applies specifically to new or modified contracts. As discussed earlier in this blog, corporations and Republican states filed a number of challenges to this rule, including one in Kentucky. A district judge there issued a preliminary injunction against the contractor requirement with respect to contractors in Kentucky, Ohio, and Tennessee, which had filed the suit. The Justice Department promptly appealed and sought a stay of the lower court ruling while the appeal goes forward.
Trump judge John Bush, joined by a very conservative Bush judge, issued a 2-1 decision that denied the stay and ruled that the vaccination requirement must remain frozen during the appeal. Bush maintained, as have other Trump judges who have ruled for states in such suits, that the contractor requirement harms the “quasi-sovereign interests” of the states by “intrud[ing] upon areas traditionally within states’ control.” He went on to rule that the Justice Department was unlikely to prevail on its claim that the federal law at issue, the Property Act, “authorize[s] the contractor mandate” by the President and that it had failed to show that the federal government would “suffer irreparable injury absent a stay.”
Judge Guy Cole strongly dissented. He explained that “nothing in the contractor mandate threatens to override state policies” or intrude on areas “traditionally left up to the states,” since it “solely applies” to carrying out of “federal contracts.” The Property Act, Cole continued, has been interpreted by the courts as providing “broad-ranging authority” over federal contractors by a president, allowing past presidents to impose “antidiscrimination provisions” on them, and that there was clearly a “close nexus” between vaccination requirements to help ensure “health and safety” of workers and “economy and efficiency in federal contracting” to justify the President’s directive. Cole noted that the federal government has “clearly demonstrated irreparable harm in the form of significant productivity losses” resulting from the projected illness and harm of COVID-19 to workers on federal contracts, which it estimates will cost “approximately two billion dollar per month that the injunction is in place.” Bush did not even discuss that estimate in his opinion.
Trump judge Bush is far from the only Trump appellate judge who has ruled in favor of continuing to freeze the contractor vaccine requirement as appeals go forward. As discussed in this blog, two Trump judges on the Eleventh Circuit recently did the same as the court considers a lower court edict blocking the contractor requirement nationwide. These cases are likely to be resolved ultimately by the Supreme Court. In the meantime, Judge Cole’s dissent provides yet another illustration of the continuing injury caused by the decisions of Trump judges like Bush blocking vaccination requirements related to COVID-19. The case is one more example of the importance, as part of our fight for our courts, of the Senate continuing to promptly confirm fair-minded judges who can counteract the harmful votes of Trump judges like Bush.