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Sunday, September 12, 2021

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4 Things to Know as Employers, States Ponder Legal Challenges to Biden’s Vaccine Mandates

Sleepy, Creepy Joe Biden’s mandate for employers with more than 99 employees to require COVID-19 vaccinations likely will face legal challenges from employers and perhaps from states, knowledgeable observers say.

In remarks at the White House, Biden said Thursday evening that he had directed the Labor Department to develop an emergency regulation giving the Occupational Safety and Health Administration the authority to enforce a national vaccine mandate for larger employers.

While some hailed Biden for taking strong action beyond the federal workforce, others expressed disbelief at what they consider authoritarian measures.

Here are four things to know as the government’s vaccine requirements likely play out in court.

1. What States Are Saying

Already, some Republican state attorneys general are suggesting legal challenges to the Biden administration’s moves.

On Friday, Texas Attorney General Ken Paxton outright announced a lawsuit on Twitter, calling the mandate on employers of 100 or more workers “the most unconstitutional, illegal thing I’ve ever seen out of any Admin in modern American history.”

Biden was asked about potential state challenges to his vaccine mandate while speaking Friday at a school in the District of Columbia.

“Have at it,” the resident said, adding:

I am so disappointed that particularly some Republican governors have been so cavalier with the health of these kids, so cavelier with the health of their communities. We are playing for real here. This isn’t a game. I don’t know of any scientist out there in this field that doesn’t think it makes considerable sense to do the six things I’ve suggested.

One Republican governor, Phil Scott of Vermont, came out in support of Biden’s actions Thursday evening.

Also Thursday evening, Indiana Attorney General Todd Rokita tweeted: “Biden’s decision to demand American workers get vaccinated or risk losing their jobs is what one would expect of dictators in a banana republic.”

About an hour later, Arizona Attorney General Mark Brnovich called Biden’s move a “devastating step toward nationalizing health care systems” and said he would act to “defend the state’s sovereignty.”

Missouri Attorney General Eric Schmitt, in a tweet Thursday evening, wrote: “Biden’s historic overreach on vaccine mandates will not stand in Missouri. We’re at a crossroads in America — who we are and what we’re going to be. We must fight back.”

South Carolina Attorney General Alan Wilson also weighed in Thursday night, tweeting that his office will “fight any overreach that may limit individuals’ personal freedoms.”

2. Legal Grounds to Oppose Mandates

In this particular case, “individual personal freedoms” are not likely the question as the president tells private companies what to do and puts jobs on the line, said Ilya Shapiro, vice president and director of constitutional studies at the libertarian Cato Institute.

“The legal analysis here is not focused on individual rights, but … federal powers,” Shapiro told The Daily Signal in a phone interview.

He referred to the mandate as a “constitutional triple threat.”

First, he said, is the constitutional issue of separation of powers.

As controversial as it was, Congress passed the Affordable Care Act’s mandate that Americans purchase health insurance; it wasn’t imposed by President Barack Obama.

“It is not in the executive branch enumerated powers,” said Shapiro, who noted that he is pro-vaccine but anti-mandate.

Second, Shapiro said, states traditionally have regulated public health matters.

Some legal experts contend that Biden has the power to impose OSHA mandates on companies through the Constitution’s commerce clause. That provision allows Congress to regulate commerce among states and between foreign nations.

In 1970, Congress passed the Occupational Safety and Health Act, which established the agency and included emergency temporary provisions.

Requiring many companies to make vaccines a condition of employment is further removed from the commerce clause than the Obamacare mandates for individuals to buy—and companies to supply—health insurance.

Moreover, the U.S. Supreme Court in 2012 upheld Obamacare’s so-called individual mandate, but rejected the commerce clause argument and instead called the mandate a tax.

“I don’t know of any federal vaccine mandates,” Shapiro said. “The level of government is important. Vaccine requirements before going to school are at the state, municipal, or local level.”

Third, forcing businesses to require their employees to be vaccinated is not a “proper” use of federal power, Shapiro said.

White House chief of staff Ron Klain, a long-time Biden aide, retweeted a comment from NBC News correspondent Stephanie Ruhle that said: “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”

Biden may have made a poor move legally and politically, Jonathan Turley, a law professor at George Washington University, wrote on his website.

“The problem is that the thing being ‘worked around’ is the Constitution,” Turley wrote. “Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional protections.”

He added:

The ‘work around’ was needed because, as some of us have previously [said] during both the Trump and Biden administration[s], the federal government does not have clear authority to impose public health mandates. Authority for such mandates has traditionally been recognized within state authority.

3. Supreme Court Precedent