By Brandon Moseley

Alabama Governor Kay Ivey (R) has joined in on a lawsuit challenging the Biden Administration’s vaccine mandates.

“I have joined a lawsuit to fight back against the outrageous, overreaching Biden vaccine mandates,” Ivey said in a statement. “From the moment the White House tried to force this vaccine onto Americans, I have said that Alabama is standing strong against it and that the best way to stop this is to go to the courts. I am proud to take this important step and join Georgia and other states to pursue the most effective legal path to stop this vaccine mandate dead in its tracks. Alabamians are overwhelmingly against these egregious, overreaching federal mandates, and I stand firmly with them.”

Alabama joins the states of Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia in the lawsuit.

The Alabama Department of Agriculture and Industries, the Alabama Department of Public Health, and the Alabama Department of Rehabilitation Services have also joined the lawsuit.

The defendants are: “Joseph R. Biden, in his official capacity as President of the United States,” as well as two dozen high-ranking members of the executive branch.

The plaintiffs are asking the courts for declaratory, preliminary, and permanent injunctive relief.

The plaintiffs claim that “For state agencies that work on federal contracts, this situation is untenable. This mandate puts billions of contracting dollars in peril, including huge portions of some state agencies’ budgets. Some agencies have received notice of their need to comply with this mandate (or lose all their funding) within the past few days, leaving compliance all but impossible. At its core, the mandate forces contractors to make an impossible choice: either (1) take enforcement action that may include termination of all unvaccinated employees, or (2) face losing billions of dollars in federal funding. And because the administration has already amended the guidance multiple times, there is no telling what other onerous obligations may put state agencies in breach at a moment’s notice.” 

Universities and research institutions

The mandate applies to most universities and research institutions within the university system because the universities maintain hundreds of contracts with various federal agencies. The plaintiffs point out that the mandate is so broad that it applies not only to the workers on the federal contracts but also to university employees who have nothing to do with the federal contracts.

The University of Alabama, Auburn University, the University of Alabama at Birmingham, and the University of Alabama in Huntsville have all already notified employees that they must be fully vaccinated by Dec. 8 or they will no longer be employed.

Contractors who do federal contract work have the same issue. Not only the employees who work on federal contracts but also any employees who come into contact with the employees working on the federal contracts must be vaccinated.

The plaintiffs also point out that to comply with the Contractor Mandate, “state entities, their officers, and their agents will need to violate Alabama law.” Alabama Act 2021-493, enacted in May of this year, prohibits Alabama state entities, their officers, and their agents from “requir[ing] the publication or sharing of immunization records or similar health information for an individual.”

The plaintiffs assert, “The sums of money Alabama would lose if it were not to comply with the Contractor Mandate are staggering.” 

Many employees of Alabama’s public universities are unvaccinated, and the governor and other plaintiffs claim, “Would likely quit their jobs rather than receive the COVID-19 vaccine as a condition of further employment.” 

Plaintiffs maintain, “Alabama and its public universities will be harmed if the universities lose these federal contract funds, particularly on such short notice. Conversely, Alabama and its public universities will be harmed if the universities lose employees.” 

Other agencies in the state believe they will also be harmed by losing employees:

The Alabama Department of Public Health (ADPH)

The ADPH received as late as Oct. 22, a demand for contract modifications. The modifications must be signed and returned by Nov. 28. The ADPH has over 2,600 employees.

The ADPH said it was already “struggling to fill empty positions even before the Contractor Mandate was issued.” 

The Alabama Department of Agriculture (ADAI)

The Alabama Department of Agriculture and Industries (ADAI) stated that it “has leased property to the United States Department of Agriculture (USDA) continuously for the past 26 years. On Oct. 20, a  USDA officer sent the ADAI a lease amendment incorporating “the mandatory Executive Order 14042 . . . which needs to be part of every Federal contract now.”  The ADAI requested clarification on Oct. 22, to which USDA sent the following response:

The ADAI says that if it, “does not comply with the Contractor Mandate, the federal government will cancel its lease and will refuse to 'do any future lease actions' with the ADAI going forward."

The Alabama Department of Rehabilitation Services

The Alabama Department of Rehabilitation Services (ADRS) is the state agency primarily responsible for serving Alabamians with disabilities. To facilitate its blind-vendor program, Alabama has contracted with the federal government since 1946.  At that point, the ADRS established the Alabama Business Enterprise Program for the Blind and Visually Impaired (BEP).  Its mission is to enable qualified blind individuals to achieve independence through self-employment.

If the BEP were to lose its permit and contract operations with the federal government, two-thirds of the BEP’s blind vendors would lose all or part of their income and livelihood. Moreover, this loss of operations funds would likely require the ADRS to use other funds to support the BEP, negatively impacting the ADRS’s non-BEP programs and consumers.

The ADRS received a permit-modifications request from GSA on Oct. 12, and the Department of Homeland Security issued a contract modification for the ADRS contract with FEMA on Oct. 14, according to the lawsuit.

Plaintiff Claims

The plaintiffs charge that the “Mandate is unsupported by an explicit statutory directive within the Procurement Act or any other federal law. Thus, the president’s actions lack the requisite congressional direction in two regards:  First, Congress did not articulate clear or sufficient instructions in the Procurement Act. Second, even if Congress did clearly authorize a national vaccination schedule for federal contractors, it did not give sufficiently clear instructions to permit the president to delegate legislative judgment.

“Under the nondelegation doctrine, the Contractor Mandate is unconstitutional because Congress did not articulate a clear principle by legislative act that directs the Executive to take sweeping action that infringes on state and individual rights,” the lawsuit states.

The plaintiffs believe federal agencies of the executive branch are not authorized to impose the Contractor Mandate.

“The Constitution does not empower Congress to require anyone who deals with the federal government to get vaccinated,” the lawsuit reads. “It is not a ‘proper’ exercise of Congress’ authority to mandate that every employee who touches a federal contract or comes in contact with another employee who touches such a contract, has to be vaccinated because the action here falls outside the scope of an Article I enumerated power.”

Ivey and other plaintiffs further claim that the mandates are a violation of the Tenth Amendment to the Constitution, “the powers not delegated by the Constitution to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

“Neither Article II of the U.S. Constitution nor any act of Congress authorizes the federal agencies of the executive branch to implement the Contractor Mandate, which traditionally falls under the police power left to the states under the Tenth Amendment,” the plaintiffs claim. “The Tenth Amendment explicitly preserves the “residuary and inviolable sovereignty,” of the states.” 

According to the lawsuit, the plaintiffs feel the pressure they have had to comply with the Contractor Mandate is because money from federal contracts is essential for necessary programs. They said it feels like coercion.

Furthermore, the plaintiffs maintain that the procedure was violated, “Pursuant to 5 U.S.C. § 553, agencies must publish a notice of proposed rulemaking in the Federal Register before promulgating a rule that has legal force.”

The plaintiffs claim, “Permanent injunctive relief would not disserve the public interest, because it would enjoin unconstitutional and illegal executive action.” 

Plaintiff Requests

1. Enter judgment in favor of Plaintiffs and against Defendants on all Counts asserted herein. 

2. Enter a declaratory judgment that Defendants, individually and collectively, have acted to impose a broad-sweeping, unlawful, and unconstitutional COVID-19 vaccine mandate and that such COVID-19 vaccine mandate is unlawful and unenforceable. 

3. Grant a temporary, preliminary, and permanent injunction prohibiting Defendants and those acting in concert with them from enforcing this broad-sweeping, unlawful, and unconstitutional mandate. 

4. Grant any additional and different relief to which Plaintiffs may be entitled. 

5. Award Plaintiffs costs of litigation, including reasonable attorney’s fees, as allowable by law.