Vanderstelt, et al. v. Joseph R. Biden, et al. 

Washington, DC (August 23, 2023) – Today, the New Civil Liberties Alliance filed a brief opposing the government’s motion to dismiss NCLA’s Vanderstelt v. Biden lawsuit against the Biden Administration’s unconstitutional Covid-19 vaccine mandate for government contractors. President Biden withdrew the mandate in May, but still claims the authority to reimpose it at his whim. NCLA asks the U.S. District Court for the Western District of Michigan not to dismiss this suit against a major abuse of executive power that could resume at any moment, especially as Covid-19 restrictions re-emerge at companies and institutions across the country.

The federal contractor mandate required Plaintiffs to take a vaccine without their consent—and for those with naturally acquired immunity, against the medical advice of experts. This measure disregarded their statutory right to informed consent and trampled on their constitutional rights to bodily integrity and to refuse unwanted medical care. The mandate was one of several administrative actions announced in September 2021 that were aimed at coercing about 100 million Americans to obtain a Covid-19 vaccine, including employees of private companies, healthcare facilities, and the federal government. The government withdrew the federal contractor mandate, so it now claims NCLA’s lawsuit against the mandate is moot. But it simultaneously defends the mandate as perfectly legal. Since Biden could unilaterally reinstate the mandate quite easily, NCLA argues the suit remains contested.

The President cannot exercise such sweeping authority under the guise of “procurement” without clear and explicit congressional authorization. Neither Congress nor the Procurement Act gave the President the power to impose the mandate in the first place, nor re-establish it in the future. Presidential policies prescribed under the Procurement Act are only valid if there’s a “nexus between the regulations and some delegation of requisite legislative authority by Congress.” There has never been one here. Under the “unconstitutional conditions” doctrine, the government may not impair Plaintiffs’ right to refuse medical care through subtle forms of coercion.

The Fifth, Sixth, and Eleventh Circuits affirmed preliminary injunctions against the federal contractor mandate. But no final decision has declared the mandate to be unlawful. The Ninth Circuit, however, held that the contractor mandate was lawful. By keeping NCLA’s lawsuit alive and ultimately ruling against the mandate, the U.S. District Court for the Western District of Michigan can ensure a final court judgment against abuse of executive power.

NCLA released the following statement:

“It would be one thing if the government agreed with the several courts of appeal that held the Contractor Mandate exceeds the President’s authority. But instead it is vigorously defending the legality and wisdom of the Mandate, and thus the President’s power to reimpose it at his whim. The government cannot have its cake and eat it too. A challenge against a withdrawn policy is not moot when the government insists on having unfettered ability to reimpose it.”
— Sheng Li, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (January 4, 2022) – The Biden Administration has enacted an unlawful executive order to compel millions of Americans who work for government contractors (even if they do not perform work on government contracts) to take a COVID-19 vaccine. Today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed a class-action lawsuit against President Biden, the Safer Federal Workforce Task Force, the Office of Management and Budget, and other government agencies and officials, in the U.S. District Court for the Western District of Michigan. The Plaintiffs in this lawsuit seek judicial relief from the unlawful and unconstitutional Federal Contractor Vaccine Mandate. Two subclasses are being sought within the class-action suit, one for naturally immune contractor employees and one for remote workers.

This mandate requires Plaintiffs to take a vaccine without their consent—and in the case of those with naturally acquired immunity, against the medical advice of experts—thereby depriving them of their constitutional right to bodily integrity and to refuse unwanted medical care and violating their statutory right to informed consent.

On September 9, 2021, the Biden Administration announced several new administrative actions aimed at coercing a total of 100 million Americans to receive a COVID-19 vaccine. In addition to private employer, healthcare facility, and federal employee mandates, the announcement covered those working for federal contractors. The federal contractor mandate has been prohibited by judicial orders in the U.S. District Courts for the Eastern District of Kentucky and Southern District of Georgia.

The President cannot exercise authority this sweeping under the guise of “procurement” in the absence of clear and explicit congressional authorization. The attempt to control the personal health decisions of Americans through general procurement authority is a question of deep economic and political significance. Congress did not provide—nor does the Procurement Act allow—the President to have this power. Presidential policies prescribed under the Procurement Act are valid only if there is a “nexus between the regulations and some delegation of requisite legislative authority by Congress.” There is no nexus here.

Additionally, under the unconstitutional conditions doctrine, the government cannot impair Plaintiffs’ right to refuse medical care through subtle forms of coercion any more than it could through an explicit mandate.

NCLA released the following statements:

“This vaccine mandate is a remarkable act of legal contortion. Because no statute authorizes the Executive Branch to unilaterally impose a sweeping health care mandate on one-fifth of U.S. workers, the President is trying to fit this mandate into a seventy-year-old procurement law, using efficiency in government contracting as the pretextual justification. No one is fooled. Forcing contractors to fire their employees—particularly those who cannot spread COVID-19 in the workplace because they are naturally immune, work remotely, or both—will undermine rather than promote efficient procurement of goods and services.”
— Sheng Li, Litigation Counsel, NCLA

“As the President has admitted on many occasions, there is no general federal power to require citizens to receive emergency authorized vaccines. So instead, the administration is attempting to use the unwarranted deference courts have granted administrative agencies to snatch such power out of thin air. The Federal Contractor Vaccine Mandate ignores the language of the federal acquisition statutes and is directly in conflict with their purpose—to ensure the Federal Government has maximum access to the goods and services produced by the American economy. This mandate will both curtail federal access to the economy and shrink the output of firms contracting with the federal government. This federal edict is unlawful, and the Court should strike it down.”
— John Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document