NOTE: Georgia v. President of the United States - Justin Walker - Harvard Law Review

136 Harv. L. Rev. 2022

Georgia v. President of the United States

Eleventh Circuit Applies the Major Questions Doctrine to a Delegation to the President.

COMMENT ON:

46 F.4th 1283 (11th Cir. 2022) 

"Recently, in Georgia v. President of the United States,2 the Eleventh Circuit struck down President Biden’s federal-contractor vaccine mandate, extending the major questions doctrine to delegations to the President."

This strong unsigned student note [claimed by 3L 

@JustinWalkerSC

] takes on another of the loose cannonades set in motion by the Supreme Court's six marauding rightists.  Now, the 11th Circuit claims - the MQD's clarity mandate, just a year after West Virginia v. EPA is said to be well established.  But as Cass Sunstein has recently explained in a draft entitled  Two Justifications  for the Major Questions Doctrine there is not even consensus on the right.  Neil Gorsuch sees the President the way that John Locke saw the King, while Amy Barrett has a more modest "best interpretation" rule without the clarity axe.

- George Conk 720/2023

Georgia v. President of the United States - Harvard Law Review

Student Notes are unsigned.  

***Judge Grant then asked whether the Order directed subordinates to exceed the Procurement Act’s bounds.27 She found that “[n]othing in the Act contemplates that every executive agency can base every procurement decision on the health of the contracting workforce. Instead, . . . agencies can articulate specific, output-related stan­dards.”28 But Judge Grant did not rely solely on textual interpretation. She turned, without invoking it by name, to the major questions doctrine. Her analysis was “informed by a well-established principle of statutory interpretation: we ‘expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.’”29 She reasoned that “requiring widespread Covid-19 vaccination is ‘no everyday exercise of federal power’” and, therefore, “including a Covid-19 vaccination requirement in every contract and solicitation, across broad procurement categories, requires ‘clear congressional authorization.’”30

Judge Grant concluded that the presidential power asserted lies “beyond what Congress could reasonably be understood to have granted.”31 She looked to “the general grant of procurement power to executive agencies,” which “states that agencies ‘shall make purchases and contracts for property and services in accordance with this division.’”32 After examining the Procurement Act’s provisions, she found that “[a]n all-encompassing vaccine requirement is different in nature than the sort of project-specific restrictions contemplated by the Act” and that “this statute is not an ‘open book’ to which contracting agencies may ‘add pages and change the plot line.’”33 Judge Grant rejected the government’s argument that the purpose provision of the Procurement Act “should be read together with the grant of authority to the President in § 121(a)” such that it “authorizes the President to ‘prescribe policies and directives’ to ensure ‘an economical and efficient system’ for federal contracting”; instead she limited the President’s authority to the specific grants in the operative portions of the Act.34 She also declined to use the nexus-based approach to Procurement Act determinations established by the D.C. Circuit in AFL-CIO v. Kahn,35 reasoning that “treating economy and efficiency as the only content defining the President’s procurement power works the same result as embedding the purpose statement of § 101 into the operative delegation of § 121(a) — an untenable approach.”36 Accordingly, the panel held that the President “likely exceeded his authority under the Procurement Act.”37 Affirming in part, the panel found that “[t]he plaintiffs have also met the remaining requirements for a preliminary injunction.”38 However, the panel vacated the preliminary injunction “to the extent that it bars enforcement of the mandate against nonparty contractors”39 because the court could “offer complete relief to the plaintiffs . . . without issuing a nationwide injunction.”40