President 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 president 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

In 1905, the Supreme Court ruled 7-2 in the case of Jacobson v. Massachusetts that the city of Cambridge, Massachusetts—and thus other local governments—could levy fines against individuals who refused to take the smallpox vaccine. 

In 1922, the high court ruled unanimously in the case of Zucht v. King to uphold the power of states to require vaccinations before children attend public school. 

But a recent ruling could bear on Biden’s actions.  

The Supreme Court last month determined that the Centers for Disease Control and Prevention lacked the authority to impose a national moratorium on evictions during the pandemic.   

The high court ruled in the case of Alabama Association of Realtors v. Department of Health and Human Services

“The Supreme Court slapped down the CDC’s imposition of a nationwide eviction moratorium,” John Malcolm, director of the Meese Center for Legal and Judicial Studies at The Heritage Foundation, told The Daily Signal. 

“Certainly, I think you will see similar lawsuits filed challenging the OSHA’s authority to impose a draconian nationwide vaccine mandate,” Malcolm said.

The only historical precedents for such executive actions may be mandates imposed during World War II by President Franklin Roosevelt, presidential historian and author Craig Shirley said. 

But, Shirley noted, Roosevelt acted during wartime. Still, he predicted that Biden’s mandate that private businesses make sure employees are vaccinated will survive a court challenge. 

“You will see a lot of civil disobedience across the country,” Shirley told The Daily Signal. “This is not what people expected when they voted for Joe Biden. They thought they were voting for a moderate, but have gotten an ultra-leftist that wants to use the government to push private citizens around.”

Biden’s new COVID-19 vaccine mandate allows the Occupational Safety and Health Administration to bypass the regular rule-making process, which includes seeking public comment. OSHA must prove employees are exposed to grave danger before imposing an emergency measure. 

In a case in 1983, OSHA issued an emergency regulation to limit worker exposure to asbestos, but it was struck down by the U.S. Court of Appeals for the 5th Circuit. 

The appeals court ruled that asbestos may present a danger, but that OSHA failed to show the regulation was needed to alleviate the risk. 

 4. Where Public Opinion Stands

A poll from the Job Creators Network, an advocacy group for small business, found that a plurality of 42% of those surveyed agreed that mandatory vaccinations would hurt small businesses, while only 33% thought the mandates would help. 

Other polls, though, have shown support for mandating vaccinations against COVID-19. 

An Associated Press poll found 62% support for a government vaccine mandate. 

Numerous major employers already required employees to get vaccinated. 

Thursday night, Biden himself said “even Fox News” requires employees to say whether they have been vaccinated. Other news outlets reported last month that Fox News requires employees to disclose their vaccination status. 

However, one leading liberal think tank waited until after Biden announced the government mandates on private employers. 

Patrick Gaspard, president and CEO of the Center for American Progress, sent an email Friday to staff announcing the think tank’s new policy. 

“CAP must do its part to advance this program at a moment when both private and public concerns must be aligned,” Gaspard wrote. “In light of this, CAP will be requiring full vaccination against COVID-19 for every member of this staff as we return to in-place work.”

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