Vice President, Employment Policy, U.S. Chamber of Commerce
March 31, 2022
America and our economy have faced an unprecedented crisis in the COVID-19 pandemic, as it has caused upheaval and disrupted many standards. Yet despite all the changes, some of which may be with us even after the pandemic has eased, there are bedrock principles that remain and are vital to how our country functions. One of these is that the president can only act based on authority granted to him by Congress, consistent with the Constitution. President Biden’s mandate that employees of federal contractors must receive the COVID-19 vaccine goes beyond that authority.
As part of President Biden’s plan to address the pandemic and increase the uptake of COVID-19 vaccines, he decreed through an executive order that all federal contracts and subcontracts include a clause directing that all employees working on a federal contract or working at a facility where work on a federal contract is performed be fully vaccinated against COVID-19 by a certain date. To support his order, President Biden relies on the Procurement Act, a 1949 law passed to provide the federal government with an “economical and efficient system” for purchasing goods and services. But the president points to this language to justify imposing healthcare policies for millions of employees under the threat of ineligibility for future government contracting funds.
Despite the elastic nature of the “economy and efficiency” language, the phrase has limits. Like elastic, it can only be stretched so far. A law setting out how the administration is to buy things cannot possibly authorize the President to determine the healthcare choices that contractors and subcontractors must impose on their employees. If this use of “economy and efficiency” is upheld, there would be no limiting principle. A future president could declare that all employees of a federal contractor must be non-smokers, or not overweight, or exercise regularly all because these characteristics would presumably reduce health-related absences and thus enhance the economy and efficiency of federal procurement.
The contractor vaccine mandate goes beyond any justifiable use of the Procurement Act and the U.S. Chamber of Commerce is pushing back. It filed an amicus brief in the Eleventh Circuit to emphasize that the Procurement Act does not give a president unbridled authority to use federal contracting to impose policies that Congress is unwilling to enact, or that agencies are not authorized to implement.
Throughout the pandemic, the U.S. Chamber of Commerce has been at the forefront of efforts to help businesses, families, and industries return to work in a safe and sustainable way. The Chamber has unequivocally supported efforts to make vaccines available and encouraged employees to protect themselves against this pandemic. Yet, private support of vaccination efforts and federal use of regulatory cudgels are two different things.
As the country moves through the pandemic and hopefully settles into a new sense of normalcy, we must never abandon those founding principles that have served us so well: The president is limited by Congress in what he can impose on the country, even if the end goal is laudable. And even a pandemic does not – and cannot – change that.
About the authors
Marc Freedman is vice president of employment policy at the U.S. Chamber of Commerce. He is responsible for developing and advocating the Chamber’s response to OSHA matters, the Employee Free Choice Act, the Family and Medical Leave Act and mandated leave issues, and other labor and workplace issues.