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Biden Administration Enjoined from Federal Face Mask Contract Mandates in Ohio

In the case of Commonwealth of Kentucky v. Biden, 6th Cir. No. 21-6147 (Jan. 12, 2023), the United States Court of Appeals for the Sixth Circuit upheld the request from Ohio Attorney General Dave Yost (“OAG”), as well as the Kentucky and Tennessee Attorney Generals, to prohibit the Biden Administration — though an injunction — from requiring federal agencies to include in new federal contracts provisions obligating contract recipients to require their employees to both wear face masks at work and be vaccinated against COVID-19 since the OAG has shown a likelihood of success on the merits; employers will be irreparably injured absent an injunction; the injunction will not harm other parties to the litigation; and the injunction is in the public interest.

In this case, the OAG argued that President Biden’s face mask mandate exceeded the President’s fundamental authority — which must stem either from an act of Congress or from the Constitution itself. In response, the Biden Administration argued that the “purpose provision” of the Federal Property and Administrative Services Act of 1949 (“Property Act”) authorized this order. The appellate court agreed with the OAG as to the parties to the lawsuit itself.

In support of its decision, the appellate court explained that:

A statutory statement of purpose provides no legal authority.


[A] purpose statement may be a useful guide to construing statutory language. But what a purpose provision cannot do is “limit or expand the scope of the operative clause.” Put differently, a purpose statement “cannot override a statute’s operative language.”

The operative language in [the Property Act’s purpose statement] empowers the President to issue directives necessary to effectuate the Property Act’s substantive provisions, not its statement of purpose. The text of [the Property Act’s purpose statement] itself tells us as much. The phrase “carry out” requires a task to be done — something “to put into practice or effect.” Yet a purpose provision, on its own, does nothing. True, “carry out” might sometimes refer to a goal rather than a task, but that would be a particularly odd construction of [the Property Act’s purpose statement].

Commonwealth of Kentucky at 8-10 (omitting internal citations).

It should be noted that the appellate court limited its decisions to employers in Kentucky, Ohio, and Tennessee as those are the states that requested the injunction.

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.



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