Is the Federal Property & Administrative Services Act Unconstitutional?
In Bradford v. U.S. Department of Labor, a divided panel of the U.S. Court of Appeals for the Tenth Circuit rejected a challenge to a Labor Department rule requiring federal contractors, including some permittees, to pay their workers a $15 per hour minimum wage. The majority concluded that this requirement was authorized by the Federal Property and Administrative Services Act (FPASA, sometimes referred to as the “Property Act” or the “Procurement Act”), which grants the President broad authority to impose requirements on federal contractors. The third judge, however, concluded that FPASA violates existing nondelegation doctrine precedent and is thus unconstitutional in a very interesting opinion. (The case is also interesting because the Supreme COurt has had very little to say about FPASA over the years.)
The majority opinion, by Judge Holmes and joined by Judge Ebel, summarizes the case:
Plaintiffs-Appellants Duke Bradford, Arkansas Valley Adventure (AVA), and the Colorado River Outfitters Association (CROA) appeal from the District of Colorado’s order denying their motion to preliminarily enjoin a Department of Labor (DOL) rule requiring federal contractors to pay their employees a $15.00 minimum hourly wage. The DOL promulgated the rule pursuant to a directive in Executive Order (EO) 14,026, which President Biden issued on April 27, 2021. EO 14,026 imposed the minimum wage requirement on most federal contractors, and it rescinded an exemption for recreational services outfitters that operate pursuant to permits on federal lands, which President Trump had adopted in EO 13,838. President Biden issued EO 14,026 pursuant to his authority under the Federal Property and Administrative Services Act (“FPASA”), 40 U.S.C. §§ 101–1315, which authorizes the President to “prescribe policies and directives that the President considers necessary to carry out” FPASA and that are “consistent with” FPASA, 40 U.S.C. § 121(a). One purpose of FPASA is to “provide the Federal Government with an economical and efficient system for . . . [p]rocuring and supplying property and nonpersonal services.” 40 U.S.C. § 101(1).
Appellants argue that the district court erred in concluding that FPASA authorizes the minimum wage rule as applied to recreational services permittees because the government does not procure any services from them or supply anything to them. They also argue that the DOL acted arbitrarily and capriciously in promulgating the minimum wage rule without exempting recreational service permittees.
Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm. We first conclude that Appellants have not shown a substantial likelihood of success
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