# State of Texas v. Trump

> Court of Appeals for the Fifth Circuit · February 4, 2025 · 127 F.4th 606

URL: https://www.frixlaw.com/law-library/cases/10793502

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 4, 2025
- **Citations:** 127 F.4th 606
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** United States Civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.
_____________________
2
Because the Federal Government did not present arguments regarding the
remaining injunctive-relief factors in its briefing, we do not consider them here.

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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

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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

_____________________
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.

_____________________
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

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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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No. 23-40671

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”).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10793502. Public record. Not legal advice.