State of Texas v. Trump

Case: 23-40671 Document: 135-1 Page: 1 Date Filed: 02/04/2025

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 23-40671

____________ FILED

February 4, 2025

State of Texas; State of Mississippi; State of Lyle W. Cayce

Louisiana, Clerk

Plaintiffs—Appellees,

versus

President Donald J. Trump, in his official capacity as President of the

United States; Department of Labor; Vincent Micone, Acting

Secretary, U.S. Department of Labor, in his official capacity as United States

Acting Secretary of Labor; Jessica Looman, in her official capacity as

Administrator of the United States Department of Labor, Wage & Hour

Division,

Defendants—Appellants. 1

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:22-CV-4

______________________________

Before Clement, Graves, and Ramirez, Circuit Judges.

Irma Carrillo Ramirez, Circuit Judge:

_____________________

1

President Donald J. Trump and Acting Secretary of Labor Vincent Micone are

automatically substituted for President Joseph R. Biden and Secretary of Labor Julie A. Su

as parties in this case. See Fed. R. App. P. 43(c).

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No. 23-40671

Three states challenged an executive order instructing various federal

agencies to require parties with which they contract to pay their workers a

$15 minimum hourly wage. The district court permanently enjoined the

executive order. We REVERSE and REMAND for further proceedings.

I

On April 27, 2021, President Joseph R. Biden issued Executive Order

14,026 (the “EO”), which ordered various federal agencies to “ensure that

their contracts” contain “a clause requiring that contractors and any covered

subcontractors agree to” pay specified workers a $15 minimum wage. The

President issued the EO titled “Increasing the Minimum Wage for Federal

Contractors” under “the authority vested in [him] as President by the

Constitution and the laws of the United States of America, including the

Federal Property and Administrative Services Act.” Exec. Order No. 14,026,

86 Fed. Reg. 22835, 22835 (Apr. 27, 2021).

On February 10, 2022, Texas, Louisiana, and Mississippi (the

“States”) sued the President, the then-Secretary of Labor, and the

then-Acting Administrator of the Department of Labor’s Wage & Hour

Division in their official capacities (collectively, the “Federal

Government”), in the United States District Court for the Southern District

of Texas. The States asserted five counts: (I) the President acted ultra vires

in issuing the EO; (II) the EO and the Department of Labor’s final rule

implementing the EO (the “Final Rule”) violate the APA for not being in

accordance with law or for being in excess of statutory authority; (III) the EO

and the Final Rule violate the APA as arbitrary and capricious;

(IV) Congress’s delegation of authority to the President under the Federal

Property and Administrative Services Act of 1949, 40 U.S.C. §§ 101 et seq.

(the “FPASA”) violates the nondelegation doctrine; and (V) the EO and

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the Final Rule constitute an unconstitutional exercise of Congress’s spending

power.

On September 26, 2023, the district court granted in part and denied

in part the parties’ dispositive cross-motions. See Texas v. Biden, 694 F. Supp.

3d 851 (S.D. Tex. 2023). It determined that the FPASA does not provide the

President “broad policy-making authority to set the minimum wage of

certain employees of federal contractors and subcontractors,” and instead

“limit[s] the President to a supervisory role in policy implementation.” Id. at

866. The district court then applied the major questions doctrine, finding that

the EO “is a major question,” so the FPASA did not authorize the President

“to raise the minimum wage paid by federal contractors and

subcontractors.” Id. at 867. The district court also found that the EO could

not be reviewed under the APA because it is “presidential action immune

from APA review.” Id. at 870. It declined to consider the remaining merits

issues because it had already found that the EO exceeded the President’s

authority under the FPASA. See id. at 870–72. Turning to the remaining

injunctive-relief elements and finding each present, 2 the district court

ultimately (i) entered judgment for the States on Count I, (ii) entered

judgment for the Federal Government as to the EO on Counts II and III, and

(iii) enjoined the Federal Government “from enforcing [the EO] and the

Final Rule against [the States] and their agencies.” Id. at 872–74.

The Federal Government timely appealed under 28 U.S.C. § 1291.

II

Permanent injunctions are reviewed on appeal for abuse of discretion.

Young Conservatives of Tex. Found. v. Smatresk, 73 F.4th 304, 308 (5th Cir.

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2

Because the Federal Government did not present arguments regarding the

remaining injunctive-relief factors in its briefing, we do not consider them here.

3

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2023). This review is “segmented” though, “such that ‘we will review the

district court’s findings of fact under the clearly erroneous standard, and the

conclusions of law under the de novo standard.’” Scott v. Schedler, 826 F.3d

207, 211 (5th Cir. 2016) (per curiam) (quoting Peaches Ent. Corp. v. Ent.

Repertoire Assocs., 62 F.3d 690, 693 (5th Cir. 1995)); see Med-Cert Home Care,

L.L.C. v. Becerra, 19 F.4th 828, 830 (5th Cir. 2021) (reviewing a permanent

injunction “for abuse of discretion[] and the legal issues underlying the grant

of the injunction de novo”). “A district court abuses its discretion when it

relies on clearly erroneous factual findings, relies on erroneous conclusions

of law, or misapplies the law to the facts.” K.P. v. LeBlanc, 729 F.3d 427, 435

(5th Cir. 2013).

III

A

The FPASA “provide[s] the [f]ederal [g]overnment with an

economical and efficient system” for, among other things, “[p]rocuring and

supplying property and nonpersonal services, and performing related

functions including contracting.” 40 U.S.C. § 101(1). The FPASA

authorizes the President to “prescribe policies and directives that the

President considers necessary to carry out this subtitle. The policies must be

consistent with this subtitle.” Id. § 121(a). Since its enactment, the FPASA

has served as the basis for numerous executive orders issued by presidents

representing both major political parties. See, e.g., Chamber of Com. v. Reich,

74 F.3d 1322, 1324 (D.C. Cir. 1996) (Bill Clinton); UAW-Lab. Emp. &

Training Corp. v. Chao, 325 F.3d 360, 362 (D.C. Cir. 2003) (George W.

Bush); see also Louisiana v. Biden, 55 F.4th 1017, 1023–27 (5th Cir. 2022)

(recounting previous challenges to the FPASA-based executive orders).

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Relying on the authority vested in him “as President by the

Constitution and the laws of the United States of America, including [the

FPASA], 40 U.S.C. 101 et seq.,” President Biden declared:

This order promotes economy and efficiency in Federal

procurement by increasing the hourly minimum wage paid by

the parties that contract with the Federal Government to

$15.00 for those workers working on or in connection with a

Federal Government contract as described in section 8 of this

order. Raising the minimum wage enhances worker

productivity and generates higher-quality work by boosting

workers’ health, morale, and effort; reducing absenteeism and

turnover; and lowering supervisory and training costs.

Accordingly, ensuring that Federal contractors pay their

workers an hourly wage of at least $15.00 will bolster economy

and efficiency in Federal procurement.

Increasing the Minimum Wage for Federal Contractors, 86 Fed. Reg. at

22835; see also Bradford v. U.S. Dep’t of Lab., 101 F.4th 707, 714–15 (10th Cir.

2024) (providing pertinent regulatory history). The President issued the EO

“to promote economy and efficiency in procurement by contracting with

sources that adequately compensate their workers.” Increasing the

Minimum Wage for Federal Contractors, 86 Fed. Reg. at 22835. Sections 8

and 9 of the EO detail its applicability, effective date, and any exceptions that

may apply. See id. at 22837–38. In general, the EO (i) applies “to any new

contract; new contract-like instrument; new solicitation; extension or

renewal of an existing contract or contract-like instrument; and exercise of

an option on an existing contract or contract-like instrument” if “it is a

procurement contract or contract-like instrument for services or

construction,” and (ii) became effective immediately. Id. at 22837. 3

_____________________

3

The district court did not consider the validity of the Final Rule, but it recognized

that the EO and the Final Rule are legally distinct actions taken by different government

5

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B

This appeal centers on a single question: Is the EO a permissible

exercise of the President’s authority under the FPASA? 4

The starting point in statutory interpretation, as always, is the text.

Ross v. Blake, 578 U.S. 632, 638 (2016). “[S]tatutory terms are generally

interpreted in accordance with their ordinary meaning.” Sebelius v. Cloer, 569

U.S. 369, 376 (2013) (internal quotations omitted). “Absent congressional

direction to the contrary, words in statutes are to be construed according to

‘their ordinary, contemporary, common meanings.’” Kennedy v. Tex. Utils.,

179 F.3d 258, 261 (5th Cir. 1999) (brackets omitted) (quoting Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993)). Because

statutory language “cannot be interpreted apart from context,” Smith v.

United States, 508 U.S. 223, 229 (1993), it is necessary to examine “the

structure and language of the statute as a whole,” Nat’l R.R. Passenger Corp.

v. Bos. & Me. Corp., 503 U.S. 407, 417 (1992). See Davis v. Mich. Dep’t of

Treasury, 489 U.S. 803, 809 (1989) (“[T]he words of a statute must be read

_____________________

actors. See Texas, 694 F. Supp. 3d at 869–71. So even though the parties support their

arguments on appeal with aspects of the Final Rule, the Final Rule is not analytically

relevant to the FPASA determination regarding the EO.

4

The question presented concerns the President’s exercise of statutory authority.

The President’s constitutional authority to take these actions is not presently before us. See

Seila Law LLC v. CFPB, 591 U.S. 197, 213 (2020) (“As Madison explained, ‘If any power

whatsoever is in its nature Executive, it is the power of appointing, overseeing, and

controlling those who execute the laws.’” (brackets omitted) (quoting 1 Annals of

Cong. 463 (1789))); see also Kevin M. Stack, The Reviewability of the President’s Statutory

Powers, 62 Vand. L. Rev. 1171, 1208–12 (2009) (discussing whether judicial review of

“the President’s assertions of statutory power is inconsistent with the President’s powers

under Article II and the separation of powers”); Evan D. Bernick, Faithful Execution: Where

Administrative Law Meets the Constitution, 108 Geo. L.J. 1, 51 (2019) (“If a given statute

is properly read to delegate discretion to the President, judges must consider whether the

Take Care Clause has been triggered through presidential action.”).

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in their context and with a view to their place in the overall statutory

scheme.”). The interpretive inquiry ends if the statutory language is clear

and unambiguous. First Am. Bank v. Resol. Tr. Corp., 30 F.3d 644, 647 (5th

Cir. 1994).

1

a

The parties agree that § 121(a) contains the FPASA’s substantive

grant of authority to the President. See Louisiana, 55 F.4th at 1023 n.17. It

reads: “The President may prescribe policies and directives that the

President considers necessary to carry out this subtitle. The policies must be

consistent with this subtitle.” 5 40 U.S.C. § 121(a).

Because the authority to “prescribe policies and directives” delegated

to the President by the text of § 121(a) “may” be exercised, it is

discretionary. See, e.g., United States v. Doe, 932 F.3d 279, 282 (5th Cir. 2019)

(“The rule is entirely discretionary—if the district court finds X, then it may

do Y.” (emphasis omitted)). The “policies and directives” issued under

§ 121(a) must be “necessary to carry out this subtitle”; this determination of

necessity is committed to the President. See, e.g., Trump v. Hawaii, 585 U.S.

667, 684 (2018). Finally, the policies the President prescribes must be

objectively “consistent with this subtitle.” See, e.g., Cappaert v. United States,

426 U.S. 128, 141–42 (1976).

Two words and a phrase in the statute—“necessary,” “consistent,”

and “to carry out”—are not defined, so they must be given their ordinary

meaning. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012); see

Cascabel Cattle Co. v. United States, 955 F.3d 445, 451 (5th Cir. 2020) (“We

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5

The provisions constituting “this subtitle” are identified in 40 U.S.C. § 111.

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often look to dictionary definitions for help in discerning a word’s ordinary

meaning.”). 6 “Necessary” means “[i]ndispensable, vital, essential;

requisite.” “Consistent” means “[m]arked by consistency,” i.e.,

“agreement, harmony, [or] compatibility.” And “to carry out” means “to

put (something) into action or practice; to cause (something) to be

implemented; to undertake.”

Together, the statute’s plain language sets forth two requirements for

the President to “prescribe policies and directives” under § 121(a): (1) the

President must subjectively determine that the policy or directive prescribed

is (a) indispensable, vital, essential, or requisite (b) to cause at least one

provision listed in 40 U.S.C. § 111 to be implemented; and (2) the policy or

directive the President prescribes must be objectively harmonious,

compatible, or otherwise not inconsistent with the provisions listed in 40

U.S.C. § 111.

b

The EO states that its purpose is “to promote economy and efficiency

in procurement by contracting with sources that adequately compensate their

workers.” Increasing the Minimum Wage for Federal Contractors, 86 Fed.

Reg. at 22835. This purpose is consistent with carrying out one of the

provisions of the relevant subtitle. See 40 U.S.C. § 101(1). The EO’s

language also shows the President determined that “contracting with sources

that adequately compensate their workers” is vital or essential to carrying out

§ 101. 7 See Increasing the Minimum Wage for Federal Contractors, 86 Fed.

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6

The dictionary definitions in this opinion come from the online edition of the

Oxford English Dictionary, which was last visited on February 4, 2025.

7

While the President provided this explanation in the EO, § 121(a)’s text does not

appear to require as much. See, e.g., Trump, 585 U.S. at 686–87.

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Reg. at 22835. Accordingly, the first requirement under § 121(a) is satisfied

here.

As for the second requirement, the parties focus their attention on the

EO’s consistency with § 101. This presents a question of first impression in

our circuit: What test should be applied to determine whether the EO is

harmonious, compatible, or otherwise not inconsistent with § 101? See

Louisiana, 55 F.4th at 1026 n.25 (declining to identify a test for this inquiry).

Of our sister circuits that have considered this question, all but one have

adopted one of two tests: (1) whether a “sufficiently close nexus” exists

between § 101’s “criteria” and the prescribed policy or directive, AFL-CIO

v. Kahn, 618 F.2d 784, 792 (D.C. Cir. 1979) (en banc), and (2) whether the

prescribed policy or directive “reasonably relate[s] to [the FPASA]’s

purpose of ensuring efficiency and economy in government procurement,”

Liberty Mut. Ins. Co. v. Friedman, 639 F.2d 164, 170 (4th Cir. 1981). Because

both these tests “yield the same result” here, it is unnecessary “to provide a

definitive standard.” Mayes v. Biden, 67 F.4th 921, 940 n.33 (9th Cir.) vacated

as moot, 89 F.4th 1186 (9th Cir. 2023); see David M. Driesen, Judicial Review

of Executive Orders’ Rationality, 98 B.U. L. Rev. 1013, 1061 (2018) (“Many

of the decisions undertaking reasonableness review of executive orders

(without calling it that) arise under [the FPASA].”).

The ordinary meaning of “economy” is “[t]he management or

administration of the material resources of a community, discipline, or other

organized body; the art or science of managing such resources,” and the

ordinary meaning of “efficiency” is “[f]itness or power to accomplish, or

success in accomplishing, the purpose intended; adequate power,

effectiveness, efficacy.” These words are “not narrow terms,” and in the

context of federal procurement, economy and efficiency include “factors like

price, quality, suitability, and availability of goods or services that are

involved in all acquisition decisions.” Kahn, 618 F.2d at 789. The EO speaks

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directly to these factors, including price of services, quality of goods and

services, and availability of services. See Increasing the Minimum Wage for

Federal Contractors, 86 Fed. Reg. at 22835 (“Raising the minimum wage

enhances worker productivity and generates higher-quality work by boosting

workers’ health, morale, and effort; reducing absenteeism and turnover; and

lowering supervisory and training costs.”); see also Mayes, 67 F.4th at 942

(noting the EO’s “close[] relat[ion] to the ordinary management of labor”).

This link between the EO and the economy and efficiency of the federal

procurement system satisfies either the “sufficiently close nexus” or the

“reasonably related” test. See Kahn, 618 F.2d at 792–93; Liberty Mut., 639

F.2d at 170–72. The second requirement of § 121(a) is therefore also

satisfied.

Because the EO satisfies both statutory requirements, the President’s

promulgation of the EO does not violate § 121(a).

2

The States advance a considerable number of arguments to the

contrary, based on the statutory text and other considerations.

a

As for their text-based arguments, the States first contend that § 101

cannot serve as a basis for the EO because it is not “an operative provision.”

The Sixth, Ninth, and Eleventh Circuits have adopted this argument, finding

that § 101 is not a source of the President’s authority. Kentucky v. Biden, 23

F.4th 585, 604 (6th Cir. 2022); Nebraska v. Su, 121 F.4th 1, 11 (9th Cir. 2024);

Georgia v. President of the U.S., 46 F.4th 1283, 1298 (11th Cir. 2022). But the

FPASA’s text does not use the term “operative” or classify any provisions

as “operative.” Instead, § 121(a) requires the policies or directives

prescribed by the President to be, in the President’s judgment, necessary to

carry out “this subtitle,” and Congress expressly determined that § 101 is

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part of “this subtitle.” 40 U.S.C. § 111(1); see Louisiana, 55 F.4th at 1023

n.17; Georgia, 46 F.4th at 1311 (Anderson, J., concurring in part and

dissenting in part) (stating that § 101 is “actually located within the subtitle

and therefore is part of the subtitle that § 121 gives the President the authority

to carry out”). Neither our precedent nor the FPASA itself excludes § 101

from the “this subtitle” language in § 121(a). Indeed, Louisiana v. Biden

seems to reach a conclusion different from the Sixth, Ninth, and Eleventh

Circuits: “To the extent that 40 U.S.C. § 121 authorizes the President to

prescribe policies and directives concerning contracting, we agree that the

statement of purpose acts as a set of guidelines within which those policies

must reside.” 55 F.4th at 1023 n.17. It rejected the notion that the Supreme

Court has imposed “a narrowing instruction for interpretation of the

[FPASA].” Id. at 1026 n.24; Chrysler Corp. v. Brown, 441 U.S. 281, 308

(1979) (“This is not to say that any grant of legislative authority to a federal

agency by Congress must be specific before regulations promulgated

pursuant to it can be binding . . . . What is important is that the reviewing

court reasonably be able to conclude that the grant of authority contemplates

the regulations issued.”).

Relatedly, the States contend that § 121(a) does not grant “standalone

authority” to the President but rather supplements “substantive” authority

already granted under the FPASA. The FPASA’s text does not use the

term “substantive” or classify any of its provisions as “substantive.” The

States do not show that being “consistent with this subtitle” requires the EO

to be coupled with any particular provision of the FPASA. Under the

FPASA, a policy or directive need only (1) carry out the relevant subtitle as

determined by the President, and (2) not objectively conflict with a provision

in that subtitle. See Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189,

194 (1985) (“Statutory construction must begin with the language employed

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by Congress and the assumption that the ordinary meaning of that language

accurately expresses the legislative purpose.”).

Crediting the States’ argument that Congress intended for § 121(a) to

be understood more narrowly would require us to read an exception into

Congress’s enactment, which we cannot do. See Bostock v. Clayton County,

590 U.S. 644, 669 (2020) (holding that “Congress’s failure to speak directly

to a specific case that falls within a more general statutory rule” does not

“create[] a tacit exception” to that rule); Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts

101 (2012) (“[T]he presumed point of using general words is to produce

general coverage—not to leave room for courts to recognize ad hoc

exceptions.”).

Second, the States contend that the FPASA’s “structure”

demonstrates § 121(a)’s “limited” scope. This argument invokes the

whole-text canon of construction, which instructs courts to read statutory

language “in [its] context and with a view to [its] place in the overall statutory

scheme.” Davis, 489 U.S. at 809. “Properly applied, it typically establishes

that only one of the possible meanings [of] a word or phrase . . . would cause

[a] provision to clash with another portion of the statute.” Scalia &

Garner, supra, at 168. The States do not identify a provision in the relevant

subtitle that is inconsistent with the EO. They offer a hypothetical, premised

on a regulation that, unlike here, would directly contradict a provision in the

FPASA’s relevant subtitle.

As part of their second argument, the States also claim that many

provisions in the relevant subtitle are “directed at the economy and

efficiency of the federal government’s procurement method or process, not

its contractors,” so the EO’s effect on contractors “inherently frustrates”

the FPASA’s scheme. This argument focuses on a perceived function of the

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FPASA’s scheme rather than the statutory text. Even if, as the States

contend, Congress intended the FPASA to (i) aid the economy and

efficiency of the federal procurement system, and (ii) leave contractors

untouched, § 121(a)’s plain language is clear and unambiguous. We cannot

“rewrite the statute so that it covers only what [the States] think is necessary

to achieve what [they] think Congress really intended.” Lewis v. City of

Chicago, 560 U.S. 205, 215 (2010); see Sackett v. EPA, 598 U.S. 651, 714

(2023) (Kagan, J., concurring in the judgment) (“[A] court may not

rewrite Congress’s plain instructions because they go further than

preferred.”). We cannot “displace ordinary statutory terms with judicial

‘speculation as to Congress’s intent.’” Pulsifer v. United States, 601 U.S. 124,

179 (2024) (Gorsuch, J., dissenting) (brackets omitted) (quoting

Magwood v. Patterson, 561 U.S. 320, 334 (2010)). Statutes are interpreted

“according to [their] plain language,” and we deviate from this path only

where “a clear contrary legislative intention is shown.” United States v.

Scrimgeour, 636 F.2d 1019, 1022–23 (5th Cir. Unit B Feb. 1981). Because the

provisions in the relevant subtitle do not demonstrate a “clearly contrary”

intent from Congress, § 121(a)’s plain language controls. 8

In their third argument, the States contend that “[a]nother set of

laws” shows that the FPASA “was not designed to address a minimum

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8

Even assuming arguendo that the States are generally correct about the scope of

the President’s authority under the FPASA, the President did not act ultra vires when he

issued the EO simply because the EO effects a policy that the States claim Congress did

not intend. See Bostock, 590 U.S. at 674 (“‘[T]hat a statute has been applied in situations

not expressly anticipated by Congress’ . . . simply ‘demonstrates the breadth’ of a

legislative command.” (original alterations omitted) (quoting Sedima, S.P.R.L. v. Imrex

Co., 473 U.S. 479, 499 (1985))). The Supreme Court has been clear that when an

application of a law “emerges that is both unexpected and important,” courts cannot

“decline to enforce the plain terms of the law” and “refer the subject back to Congress.”

Id. at 676.

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wage.” Comparisons to other statutes, however, are impermissible if the

statutory language at issue is clear and unambiguous. Little v. Shell Expl. &

Prod. Co., 690 F.3d 282, 289 (5th Cir. 2012). Because § 121(a) is clear and

unambiguous, the States’ comparative argument cannot be properly

considered. Regardless, the States do not identify anything in the wage

statutes that contradicts the EO’s language.

Fourth, the States contend the Federal Government’s reading of

§ 121(a) is considerably overbroad. Given the statute’s plain language on this

account, nearly all courts around the country have recognized the breadth of

the President’s authority under § 121(a). E.g., Farkas v. Tex. Instrument, Inc.,

375 F.2d 629, 632 n.1 (5th Cir. 1967) (noting the “broad authority” the

FPASA gives to the President); Bradford, 101 F.4th at 735 (Eid, J.,

dissenting) (recognizing that “the FPASA gives the President nearly

unfettered power to regulate any nonpersonal service via any contract-like

instrument”); Chao, 325 F.3d at 366 (recognizing “the necessary flexibility

and ‘broad-ranging authority’” the FPASA provides the President);

Georgia, 46 F.4th at 1315 (Anderson, J., concurring in part and dissenting

in part) (“[T]he delegation to the President [under the FPASA] provides

broad discretion to achieve broad goals.”); see Louisiana, 55 F.4th at 1028

(“[The FPASA] introduces no serious limit on the President’s authority

and, in fact, places discernment explicitly in the President’s hands.”); see also

Martin v. Mott, 25 U.S. (12 Wheat.) 19, 31–32 (1827) (Story, J.)

(“Whenever a statute gives a discretionary power to any person, to be

exercised by him upon his own opinion of certain facts, it is a sound rule of

construction, that the statute constitutes him the sole and exclusive judge of

the existence of those facts.”).

Congress knows how to enact statutes of various scopes and breadths.

And it is well aware that courts give clear and unambiguous statutory

language its ordinary meaning. So when Congress uses broad language that is

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clear and unambiguous, it intends for courts to give effect to it all the same.

See Scalia & Garner, supra, at 101 (“[G]eneral words (like all words,

general or not) are to be accorded their full and fair scope. They are not to be

arbitrarily limited.”); see also Dames & Moore v. Regan, 453 U.S. 654, 678

(1981) (“Congress cannot anticipate and legislate with regard to every

possible action the President may find it necessary to take or every possible

situation in which he might act.”).

b

The States offer two additional arguments that are not based on the

statutory text.

First, the States contend that because the original purpose of the

FPASA was to “[e]liminat[e] the ‘shocking instances of wasteful practices

and poor business management’ in government procurement practices,” the

President transgressed his “inherently limited” authority under the

FPASA. 9 But “[g]iven the clear meaning of the text, there is no need to

resolve this dispute or to consult the purpose of [the statute] at all.” Cooper

Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167 (2004); Corner Post, Inc. v.

Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 815 (2024) (“[T]he text of a

law controls over purported legislative intentions . . . .” (quoting Oklahoma

v. Castro-Huerta, 597 U.S. 629, 642 (2022))); see also Scalia & Garner,

supra, at 56 (“[T]he purpose must be derived from the text, not from

extrinsic sources such as legislative history or an assumption about the legal

drafter’s desires.”).

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9

The States reference the FPASA’s legislative history to support their argument.

But “there is no need to refer to . . . legislative history” since § 121(a) is clear and

unambiguous. United States v. Second Nat. Bank of N. Mia., 502 F.2d 535, 540 (5th Cir.

1974); see Milner v. Dep’t of Navy, 562 U.S. 562, 574 (2011) (“Legislative history, for those

who take it into account, is meant to clear up ambiguity, not create it.”).

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“Where, as here, the language of a provision is sufficiently clear in its

context . . . , there is no occasion to examine the additional considerations of

‘policy’ that may have influenced the lawmakers in their formulation of the

statute.” Rodriguez v. United States, 480 U.S. 522, 526 (1987) (per curiam)

(cleaned up) (quoting Aaron v. SEC, 446 U.S. 680, 695 (1980)). Courts

cannot elevate a party’s conception of a statute’s purpose over the plain text.

See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (“[I]t is

ultimately the provisions of our laws rather than the principal concerns of our

legislators by which we are governed.”).

Second, the States contend the EO violates the FPASA because the

EO does not effect a policy that furthers the economy and efficiency of the

federal procurement system. The economics of the EO are not a matter for

federal courts. See, e.g., Lochner v. New York, 198 U.S. 45, 72 (1905)

(Harlan, J., dissenting) (“I do not stop to consider whether any particular

view of this economic question presents the sounder theory.”), overruled by

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952), and overruled by

Ferguson v. Skrupa, 372 U.S. 726 (1963), and abrogated by W. Coast Hotel Co.

v. Parrish, 300 U.S. 379 (1937); St. Joseph Abbey v. Castille, 712 F.3d 215, 227

(5th Cir. 2013) (“We deploy no economic theory of social statics or draw

upon a judicial vision of free enterprise.”) 10; cf. Newspaper Ass’n of Am. v.

Postal Regul. Comm’n, 734 F.3d 1208, 1216 (D.C. Cir. 2013) (“When, as here,

an agency is making ‘predictive judgments about the likely economic effects

of a rule,’ we are particularly loath to second-guess its analysis.” (quoting

_____________________

10

Some of the cited authorities concern judicial review of legislative enactments

rather than executive action. The logic is nevertheless analogous because this appeal

concerns presidential exercise of statutory authority. See Kevin M. Stack, The Statutory

President, 90 Iowa L. Rev. 539, 543 (2005) (“[T]he president’s accountability, visibility,

and ability to coordinate policy provide strong reasons for presuming that Congress would

prefer that the president’s assertions of statutory authority be reviewed deferentially.”).

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Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536, 541 (D.C. Cir. 2009)

(Kavanaugh, J.))).

Article III courts “decide only matters ‘of a Judiciary Nature.’”

TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021) (quoting 2 The

Records of the Federal Convention of 1787 430 (Max Farrand

ed., 1966) (statement of James Madison)). Because federal judges do not

possess “special expertise or authority to declare . . . what a self-governing

people should consider just or wise,” Bostock, 590 U.S. at 681, it is not within

our institutional competence to “second-guess the wisdom” of “policy

choice[s].” Mansell v. Mansell, 490 U.S. 581, 594 (1989). See Nebbia v. New

York, 291 U.S. 502, 537 (1934) (“With the wisdom of the policy adopted, with

the adequacy or practicability of the law enacted to forward it, the courts are

both incompetent and unauthorized to deal.”).

Precedent makes clear that the President’s justifications for issuing

the EO and the States’ corresponding counterarguments are policy

considerations that we cannot weigh. So long as the EO passes muster under

the FPASA’s plain language, we have no role left to play, see Mansell, 490

U.S. at 594—otherwise, we might “impermissibly micromanag[e] the

[P]resident’s decision-making process or otherwise compromis[e] the

Constitution’s separation of powers,” Lisa Manheim & Kathryn A. Watts,

Reviewing Presidential Orders, 86 U. Chi. L. Rev. 1743, 1813 (2019). A

different outcome must come from Congress or the President, not the federal

courts. See Munn v. Illinois, 94 U.S. (4 Otto) 113, 134 (1876) (“For protection

against abuses by legislatures the people must resort to the polls, not to the

courts.”); see also, e.g., Azar v. Allina Health Servs., 587 U.S. 566, 581 (2019)

(“[C]ourts aren’t free to rewrite clear statutes under the banner of our own

policy concerns. If the [complainant] doesn’t like Congress’s . . . policy

choices, it must take its complaints there.”).

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* * *

40 U.S.C. § 121(a)’s language is clear and unambiguous: The

President may prescribe policies or directives the President considers

necessary to carry out the provisions under § 111, so long as such policies or

directives do not conflict with those provisions. The EO falls within this

statutory authorization and is therefore a valid exercise of the President’s

authority under the FPASA.

IV

The parties also dispute whether the EO violates the major questions

doctrine. 11

A

Initially, we consider whether the major questions doctrine may be

applied here.

First, the major questions doctrine applies when a question exists as

to a statute’s linguistic clarity. See West Virginia v. EPA, 597 U.S. 697, 723

(2022) (“[I]n certain extraordinary cases, both separation of powers

principles and a practical understanding of legislative intent make us

‘reluctant to read into ambiguous statutory text’ the delegation claimed to be

lurking there.”); Gundy v. United States, 588 U.S. 128, 167 (2019)

(Gorsuch, J., dissenting) (“[A]n agency can fill in statutory gaps where

‘statutory circumstances’ indicate that Congress meant to grant it such

powers. But we don’t follow that rule when the ‘statutory gap’ concerns ‘a

question of deep “economic and political significance” that is central to the

_____________________

11

The rule of orderliness binds us to apply the major questions doctrine to

congressional delegations of authority to the President. See Louisiana, 55 F.4th at 1031 n.40.

But see Mayes, 67 F.4th at 932–34 (explaining why the major questions doctrine does not

apply to presidential actions).

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statutory scheme.’” (footnote omitted)). As discussed supra, § 121(a)’s text

is clear and unambiguous—no issue of linguistic clarity exists. See Kovac v.

Wray, 109 F.4th 331, 335 (5th Cir. 2024) (“We need not analyze whether the

major questions doctrine applies . . . if the relevant statutes provide ‘clear

congressional authorization.’” (quoting West Virginia, 597 U.S. at 724)).

This major-questions prerequisite is therefore absent.

Second, the major questions doctrine has yet to be applied to the

government’s exercise of proprietary, as opposed to regulatory, authority.

See Mayes, 67 F.4th at 935–36; Georgia, 46 F.4th at 1314–15 (Anderson,

J., concurring in part and dissenting in part); see also Louisiana, 55 F.4th at

1032 (acknowledging that the distinction between proprietary and regulatory

authority “may carry more weight” if the government’s assertion of

authority under the FPASA is proprietary). “Like private individuals and

businesses, the Government enjoys the unrestricted power to produce its

own supplies, to determine those with whom it will deal, and to fix the terms

and conditions upon which it will make needed purchases.” Perkins v. Lukens

Steel Co., 310 U.S. 113, 127 (1940). The government is less restricted when

exercising its proprietary authority as opposed to its regulatory authority. See

NASA v. Nelson, 562 U.S. 134, 148 (2011). Here, the EO “reflects the

President’s management decision that the federal government will do

business with companies only on terms he regards as promoting economy and

efficiency,” which falls within the realm of proprietary authority. See

Bradford, 101 F.4th at 726. It is questionable whether the major questions

doctrine applies to an exercise of the government’s proprietary (i.e.,

nonregulatory) authority. 12

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12

The major questions doctrine may be inapplicable for an additional reason

depending on the answer to an unresolved question of law: whether the major questions

doctrine is “a linguistic canon, . . . a substantive canon . . . , or both.” Save Jobs USA v.

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B

The States advance three primary arguments to the contrary.

First, the States contend that the EO’s subject matter is outside the

President’s expertise. As the President is exercising the government’s

proprietary authority, the wages paid by federal contractors are directly

within the President’s purview. See Cafeteria & Rest. Workers Union v.

McElroy, 367 U.S. 886, 896 (1961) (discussing the United States’ ability “to

manage [its] internal operation[s]” in its capacity as “proprietor”).

Second, the States urge us not to “lose sight of ‘common sense’”

because “[i]t is not credible that Congress offhandedly empowered

presidents to impose national social policies in a statute designed to

streamline procurement.” As discussed, the FPASA’s delegation of

authority to the President is clear, unambiguous, and broad—other than their

policy concerns, which we cannot properly consider, the States do not

explain why this outcome defies common sense under the law. See Avion

Funding, L.L.C. v. GFS Indus., L.L.C. (In re GFS Indus., L.L.C.), 99 F.4th

223, 232 n.11 (5th Cir. 2024) (rejecting arguments “grounded in policy

considerations, not statutory text or structure”).

_____________________

DHS, 111 F.4th 76, 80 (D.C. Cir. 2024); see Rest. L. Ctr. v. U.S. Dep’t of Lab., 115 F.4th

396, 407 n.9 (5th Cir.) opinion withdrawn and superseded on reh’g, 120 F.4th 163 (5th Cir.

2024) (“There is some uncertainty over whether we should apply th[e major questions]

doctrine as a substantive clear-statement rule or as a purely linguistic canon of

construction.” (citations omitted)). If the major questions doctrine is a substantive canon,

the rule of orderliness precludes us from applying it because we may consult substantive

canons only after determining a statute is ambiguous (which § 121(a) is not). See Vitol, Inc.

v. United States, 30 F.4th 248, 253 (5th Cir. 2022). For now, it is unnecessary to answer

this open question. Compare West Virginia, 597 U.S. at 736–42 (2022) (Gorsuch, J.,

concurring) (substantive canon), with Biden v. Nebraska, 143 S. Ct. 2355, 2378–83 (2023)

(Barrett, J., concurring) (linguistic canon).

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Third, the States contend that if Congress, through the FPASA,

granted the President the authority the Federal Government asserts on

appeal, then Congress violated the nondelegation doctrine. The district court

declined to consider the merits of the States’ nondelegation argument. See

Biden, 694 F. Supp. 3d at 871. We ordinarily allow district courts to consider

issues presented in the first instance, and there is no reason to deviate from

that practice here. See Braidwood Mgmt., Inc. v. Becerra, 104 F.4th 930, 957

(5th Cir. 2024).

V

We REVERSE the permanent injunction and REMAND for further

proceedings consistent with this opinion.

21