The Heritage Foundation is suing the Biden administration to stop its COVID-19 vaccine mandate for private employers, calling the requirement a “gross abuse of power.”

“The mandate clearly encroaches on the police power of states expressly reserved by the 10th Amendment [to the Constitution],” argues the complaint filed Monday in the U.S. Court of Appeals for the D.C. Circuit. The lawsuit adds: “It also exceeds the federal government’s authority under the Commerce Clause.”

Heritage Foundation President Kay C. James and the think tank’s incoming president, Kevin Roberts, who takes office Wednesday, both issued statements on the lawsuit.

“Dr. Roberts and I, along with the Board of Trustees, unanimously agreed The Heritage Foundation has a vital role to play in the courts to protect and secure the freedom of all Americans to make medical decisions for themselves,” James said, adding: 

To all of our members, to the conservative movement, and to Americans concerned by this unacceptable overreach by President [Joe] Biden and his administration, I say this—Heritage’s leadership is united behind this lawsuit, and we are going to fight tooth-and-nail and send the message that our freedoms are not up for debate.

Heritage’s court action became one of the latest challenges to the vaccine mandate, which imposes a Jan. 4. deadline for businesses and other organizations that employ 100 or more to require their employees either to be fully vaccinated or produce the results of weekly tests for the coronavirus. Heritage has about 270 employees. 

The American Center for Law and Justice, a conservative legal group, filed the lawsuit on behalf of Heritage, which is the parent organization of The Daily Signal.

“The Heritage Foundation has not historically filed lawsuits,” Roberts said in his own written statement. “That we are doing so now should make clear to any observer that we view this mandate as a deadly serious threat to our individual liberty and the values that make America great. Under my predecessors, The Heritage Foundation has stood rock-solid in defense of liberty, freedom, and opportunity for all, and it will continue to do so under my leadership.”

Roberts continued: 

I wish this lawsuit were unnecessary. I wish we had an administration in the White House that respected the Constitution and the rule of law. 

From the unprecedented border crisis, to the disastrous Afghanistan withdrawal, to now this unlawful COVID vaccine mandate, it is irrevocably clear that this administration will stop at nothing—even harming Americans and our national interests—in pursuit of the most radical policy agenda in American history. Rest assured, we at Heritage are only just beginning to fight back. …

I am so thrilled to be leading this incredible organization at this pivotal time in our nation’s history, and to be engaged in the trenches on the most important fights we’ve seen in a generation.

On Sept.9, Biden authorized the Occupational Safety and Health Administration to require employers with 100 or more workers to make sure those workers either are fully vaccinated or provide weekly test results showing that they don’t have COVID-19. 

“We’re going to protect vaccinated workers from unvaccinated co-workers,” Biden said in announcing the mandate.

The Biden administration contends that the mandate is necessary because too many Americans refuse to get vaccinated, and that OSHA has the statutory authority to impose the mandate.

During remarks Monday at the White House about the omicron variant of COVID-19, Biden said the United States is doing its part to get its citizens vaccinated, and added: “We can’t let up until the world is vaccinated.”

The Heritage Foundation joins other employers as well as state attorneys general in filing lawsuits challenging the Occupational Safety and Health Administration’s emergency rule implementing the mandate. 

“The ACLJ is honored to serve as counsel for The Heritage Foundation,” said Jay Sekulow, chief counsel for the American Center for Law and Justice, in a written statement. “This case focuses on the serious constitutional issues raised by the Biden administration’s employer mandate.” 

Implementing the mandate, which would cover at least 84.2 million Americans working for about 164,000 different businesses and other organizations, could be difficult and might rely on employees’ snitching on bosses and colleagues. 

The New Orleans-based 5th U.S. Circuit Court of Appeals enjoined the Biden administration’s vaccine mandate Nov. 6, citing “grave statutory and constitutional issues.” 

The appeals court affirmed its previous ruling, writing that Biden’s vaccine mandate is “staggeringly overbroad” and likely “violates the constitutional structure that safeguards our collective liberty.” 

The Biden administration announced it would not enforce the mandate while the litigation is pending. 

Monday also marked another setback for the Biden administration when a federal court in Missouri halted the federal requirement for health care workers to be vaccinated in 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. 

The requirement, which came under a rule from the Department of Health and Human Services earlier this year, is separate from OSHA’s emergency regulation. 

In yet another separate regulation, the Biden administration’s Office of Personnel Management announced that it would delay penalties against federal employees who were not vaccinated by a Nov. 22 deadline.

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