20 States and counting sue Biden admin over employer vaccine mandate

As the federal government prepares to implement mandates requiring tens of millions of workers at private companies to be vaccinated or submit to weekly testing, states are staging a legal battle to stop them.

Quick Facts

• President Biden announced on Sept. 9 that he would require private employers with over 100 employees to mandate the vaccine
• On Thursday, the Occupational Safety and Health Administration (OSHA) announced new rules that will require these same private employers to have all of its workers vaccinated by January 4 or require them to be tested at least weekly and wear a mask.
• Similar rules will require all federal contractors to be vaccinated by the same date.
• States have filed suit to block OSHA’s rules claiming that the executive branch does not have the constitutional authority to pass such a sweeping mandate on private entities.

OSHA announced the rules as an emergency temporary standard (ETS), bypassing public notice requirements, meaning the rules would have to be revisited in six months before being permanently passed. Various states have filed lawsuits to block the mandate. For example, a lawsuit filed this morning by the states of Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, Wyoming, as well as several private employers, stated,

“This mandate is unconstitutional, unlawful, and unwise. The federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment. OSHA also lacks statutory authority to issue the ETS, which it shoe-horned into statutes that govern workplace safety, and which were never intended to federalize public-health policy.”

Meanwhile, Gov. Ron DeSantis says Florida will file a suit in conjunction with Georgia and Alabama, explaining, “This is not consistent with a government of limited and enumerated powers. There is no general police power, there is no power to mandate on the American people from the federal government.”

The states of Tennessee, Kentucky, and Ohio are also filing a suit to stop the mandate against government contractors based in their states. Tennessee Attorney General Herbert H. Slattery III said, “Unless we intervene, federal contractors in Tennessee will be forced to make sense of the mandate’s many inconsistencies that require their entire workforce be vaccinated or face potential blacklisting and loss of future federal contracts.”

Employers who do not comply could face a $14,000 fine for each violation.

The states of Mississippi, Louisiana, and Indiana have also filed suit, noting that the mandate “suffers from a host of fatal flaws,” not the least of which is that it “usurps State authority in a core area of State sovereignty—public health—and does so by relying upon laws that have nothing to do with health.”

Labor Secretary Matt Walsh disagreed with the states’ attorneys general on OSHA’s authority to implement such rules, saying, “The unmitigated spread of coronavirus in the workplace presents a grave danger of illness or death to unvaccinated workers. This rule is well within OSHA’s authority under the OSH Act, and consistent with OSHA’s requirements to protect workers.” Walsh also stated that the rules would supersede any state laws that ban vaccine mandates.

One source of contention is who will pay for vaccination and testing. According to some experts, it appears that employers will be required to foot the bill for vaccinations and paid leave related to the vaccine, while unvaccinated workers with exemptions will be required to pay for weekly testing.

Legal minds are divided on whether the Biden administration has the authority to implement the mandate. Wendy Parmet, director of Northeastern University’s Center for Health Policy and Law, personally believes that Biden has the authority, but said, “There are strong reasons to believe that he has that power, but I can imagine a court going the other way.”

Walter Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies, noted that when OSHA has used an ETS to implement a workplace safety requirement, courts have often struck it down, including in 1984 when it threw out OSHA’s use of an ETS to limit asbestos exposure in the workplace.

State elections have consequences. It is imperative that voters look beyond the party and into the character of their candidate to see if they will have the state’s best interest in mind, not the Federal government’s. The U.S. Government was not created with a delegation effect where whatever the Federal government says automatically trickles down as mandates for the states. Thankfully, state leaders recognize this and are pushing back.

It is indeed concerning that such power is being thrown about in a way the Founders clearly did not intend, indeed they fought against such power.

State leaders, among other groups like First Liberty and Alliance Defending Freedom, will be documented in the history books as the freedom fighters of our time; standing up to tyrannic measures for the sake of liberty and participating in a victory that while celebrated by many now, will hopefully be an unthinkable overreach tomorrow.

Editor’s Note: The Standing for Freedom Center takes no official position on the COVID-19 vaccination. Our position is simply freedom. We do not encourage people to take the vaccine nor do we discourage people from receiving the vaccine as we believe that is a personal choice to be made individually based on personal health, research, and individual liberty. Any opposition that our articles show towards the vaccine conversation is about the mandates, not the vaccine itself. We oppose government overreach, no matter the variable. –John Wesley Reid