Introduction
In late 2021, President Biden relied on the Procurement Act to sign an Executive Order effectively requiring every employee of any private company that contracts with the federal government to be fully vaccinated for COVID-19. While the mandate was ultimately rescinded less than two years later, it produced four inconsistent federal circuit court opinions that together expose the problems with existing judicial frameworks for analyzing executive authority under the Procurement Act.
This Note explores the growth of the federal procurement industry, the evolution of executive orders under the Procurement Act, and the existing jurisprudence for executive power under the Act. The dominant judicial test, the Kahn framework, contains no inherent limiting principle to the President’s authority and is outdated given the ever-increasing size of the federal procurement industry and the evolving nature of executive orders under the Act. Meanwhile, the circuits enjoining the contractor vaccine mandate reached the correct outcome given the text and legislative history of the statute, but erred in applying the major questions doctrine to a presidential delegation. This Note proposes that courts should first inquire into what extent an order imposes affirmative obligations on contractor employees beyond what is necessary for performance on the government contract. This inquiry will recenter Procurement Act jurisprudence back to the text and legislative history of the statute, offer a limiting principle to the Kahn framework, and avoid the interpretive pitfalls of applying the major questions doctrine to a presidential delegation. Furthermore, it will help to clarify public and private accountability by placing limits on the executive’s role in altering private employment relationships through government contracts.