Justin Van Orsdol has posted The Protean Procurement Act on SSRN. Here is the abstract:
In 2020, we confronted a global pandemic that killed hundreds of thousands of Americans and sent many more to the hospital. The effects of COVID were far-reaching: effects we continue to deal with today. The government, specifically government procurement, was not immune to these ramifications.
When government contractors succumbed to COVID, they found themselves no longer able to perform timely or at all. These delays not only cost the federal government money, but they also disrupted necessary government supplies and services. We needed a solution, and we needed one fast.
President Biden sought to remedy this problem with an executive order under the Procurement Act. That executive order, known as the contractor vaccine mandate, directed certain federal government contractors to require employee vaccinations. President Biden was on firm ground given that past administrations from both parties have used the Procurement Act's broad authority to enact all sorts of policies. Contractors-mainly conservative states-cried foul and sued the Biden administration for injunctive relief.
What followed was litigation in mostly far-right circuits that enjoined the executive order, holding that it did not satisfy the quintessential "close nexus test." On the surface these cases appear to be merely an exercise of statutory interpretation. But a closer examination of these cases reveals much more about the future of the standing doctrine, the purported rationale behind the major questions doctrine, the appropriateness of nationwide injunctions, and separation of powers concerns between the Executive and Judicial branches.
This Article explores these topics under the lens of the Procurement Act litigation and explains why these courts erred on several issues. It suggests that the courts' standing analyses--premised on misunderstanding of federal procurement law--threaten to erode whatever remains of the standing doctrine. Further, it contends that the courts' reliance on the major questions doctrine underscore fallacies with the doctrine's purported rationale. This Article also offers a revised approach to the close nexus test that combines a variety of approaches to balance the competing separation of powers concerns while preserving executive flexibility over government procurement.
