What’s Next as States, Businesses Sue to Stop Biden Vaccine Mandate

One court has already temporarily stopped the Biden administration’s mandate for private employers to get vaccines. There are legal challenges arising across the country as 27 states, multiple businesses, and non-profits seek to stop the mandate's likely progression to the Supreme Court.
Plaintiffs have filed lawsuits in federal appeals courts in the 5th-6th, 7th and 8th, 8th and 11th circuits, as well as in the Washington, D.C., one. Next, a lottery process will determine which federal circuit will hear the case.

The federal government will likely file a motion to overturn the Saturday ruling by a three-judge panel from the 5th U.S. Circuit Court of Appeals imposed a temporary stop on enforcing federal rule implementing mandate.

Last week, the Labor Department issued an emergency rule requiring employers who employ 100 or more people to obtain the COVID-19 vaccination or have their workers tested for the disease every week.

President Joe Biden stated that the Occupational Safety and Health Administration (part of the Labor Department) will begin enforcing this mandate January 4th through fines of $13,600 for each violation per business.

About 84 million American workers will be affected by the mandate on businesses and other organisations. Biden's social expenditure bill, currently before the House, proposes increasing the penalty for willful violations to $700,000.

The mandate was not enforced while the case is being litigated. A three-judge panel from the New Orleans-based 5th Circuit argued that the mandate raised "grave statutory, and constitutional questions." The appeals court will decide whether an injunction should be imposed.

The 5th Circuit ruled in favor of the Texas Public Policy Foundation, an Austin-based conservative thinktank that filed the emergency motion for stay enforcement on behalf a group of temporary staffing companies in Texas.

Like other plaintiffs, the Texas Public Policy Foundation claims that Congress did not give OSHA the authority to prevent pandemics and to regulate companies who work across state lines.

Robert Henneke, the foundation's general attorney, stated in a written statement that "the quick turnaround by 5th Circuit to stop the mandate signifies deep and obvious constitutional problems pertaining to the federal government's mandate for private employers to get vaccines," This should be a signal to the White House that this mandate is not only unconstitutional but also ill-conceived.

The 5th Circuit also included Republican state attorneys general from Texas and Louisiana, Mississippi, South Carolina and Utah. They argued that the Occupational Health and Safety Administration is limited in power and has specific responsibilities and that the mandate was "flatly unconstitutional."

Friday's lawsuit by the Republican National Committee sought to stop the D.C. mandate. Circuit Court.

Alliance Defending Freedom is a conservative legal organization that specializes in religious liberty and represents plaintiffs in four legal proceedings challenging the mandate.

The case of The Daily Wire is perhaps the most famous. It was founded by Ben Shapiro, conservative commentator, and author, and it is based in Nashville. The lawsuit was filed in U.S. Circuit Court. Circuit Court.

Eric Schmitt (Republican Missouri Attorney General) is leading a group of 11 states that are challenging the vaccine mandate in U.S. 8. Circuit Court of Appeals. Friday's motion referred to the mandate as "unconstitutional and unlawful" and "unwise."

Missouri is joined by Arizona, Montana Nebraska, Arkansas Iowa, North Dakota South Dakota Alaska, New Hampshire and Wyoming.

Iowa Attorney General Tom Miller (a Democrat) filed the lawsuit for the state. He stated that it was his "duty," under the law to prosecute and defend any actions when asked by the governor. Kim Reynolds is a Republican.

Alliance Defending Freedom is also involved in Missouri v. OSHA. It represents Bishop O'Gorman Catholic schools, a consolidated school system consisting of eight schools within the Catholic Diocese in Sioux Falls, South Dakota. The mandate was challenged by Alliance Defending Freedom. Both the Christian Employers Alliance (CEA) and the Home School Legal Defense Association (HSLA) joined the case.

A seven-state coalition that included Kentucky, West Virginia and Ohio as well as Kansas, Oklahoma, Idaho, Kansas, Oklahoma and Tennessee filed a lawsuit against the U.S. to stop the vaccination mandate. Circuit Court of Appeals.

"Many Kentuckians are worried by the overreach of the Biden administration in issuing an OSHA federal vaccine mandate. Our office is taking action for their sake and on behalf the Commonwealth," Kentucky Attorney-General Daniel Cameron stated in a written statement. "The states have the power to make these decisions, and the Biden administration can't commandeer them to issue an illegal and overbroad mandate."

Kansas Gov. Laura Kelly, a Democrat, stated Friday that the mandate to vaccine private employers was necessary for Kansas. "While I understand the desire to keep people safe, which is a goal I share with my fellow Democrats, I don’t believe this directive will be the right or most effective solution for Kansas."

Alliance Defending Freedom represents in the 6th Circuit case the Southern Baptist Theological Seminary, Louisville, Kentucky. It is one of six Southern Baptist Convention seminaries.

Indiana sued to block the vaccine mandate in 7th U.S. Circuit Court of Appeals.

Florida v. OSHA saw Georgia and Alabama join Florida in suing Biden's administration in the 11th Circuit. Alliance Defending Freedom represented the Cambridge Christian School, Tampa, Florida. The lawsuit was joined by the King's Academy, West Palm Beach's Christian prep school.

Many conservative-leaning non-profits have also brought lawsuits to stop OSHA's vaccine mandate.

The Washington-based Job Creators Network is representing six small businesses in the 8th Circuit.

Buckeye Institute, an Ohio think tank that promotes free markets, was sued by several Ohio companies in the 6th Circuit.

The Chicago-based Liberty Justice Center, and the Pelican Institution for Public Policy, a thinktank in New Orleans, were sued by the 5th Circuit on behalf a Louisiana businessman and a group remote workers from Texas.

The Mississippi Justice Institute, which is the legal arm of Mississippi Center for Public Policy, also filed suit in the 5th Circuit on behalf of Gulf Coast Restaurant Group Inc.

The Wisconsin Institute for Law and Liberty filed a lawsuit in the 7th Circuit on behalf of two Wisconsin-based businesses seeking to stop OSHA's mandate. The institute represents Tankcraft Corp. a metal fabricator that specializes in products for transportation markets; and Plasticraft Corp. a custom moulder of hollow plastic parts.

Private employer supporters of the vaccine mandate argue that it is legal under both the statutory language of the Occupational Safety and Health Act (enacted in 1970) and the Commerce Clause of the Constitution.

Although the Supreme Court upheld local vaccine requirements in 1905, and state vaccine requirements 1922 respectively, it has not dealt with a federal mandate for vaccines.

The Daily Signal reported that OSHA's Emergency Temporary Standards--the basis for the mandate--requiring proof of "grave hazards" to employees--have performed poorly in court cases, since the 1970 law was enacted.

Experts from Heritage Foundation, Doug Badger and Paul Larkin, predicted that courts would "almost certainly" strike down OSHA's vaccine mandate.

"Congress did NOT place vaccines under OSHA's jurisdiction. Larkin and Badger stated that OSHA has established the vaccine mandate by using an "emergency temporary rule". OSHA can bypass public notice and comments with this unusual process. OSHA and other federal agencies must typically submit major rules for public scrutiny before they can be finalized.

Heritage analysts explain:

The Department of Health and Human Services was given the task of determining whether vaccines are safe, effective, and appropriate for use. The Food and Drug Administration was authorized by Congress to decide whether vaccines should be permitted in interstate commerce. The Act empowered the Centers for Disease Control and Prevention (CDC) to recommend who should be given these vaccines. HHS was not authorized by Congress to impose a general vaccination mandate. HHS is a regulatory agency that oversees vaccines. However, it does not have the power to impose any general vaccine mandate. ... Congress would have passed a law granting and defining general vaccine mandate authority to an agency if it wanted to.

Do you have a comment about this article? Send us an email at [email protected] with your comments and we will publish them in our "We Hear You” feature. Include the article's URL or headline, along with your name and the address of your town or state.