Today, the Texas Public Policy Foundation’s Center for the American Future and America First Legal filed suit to challenge the Biden administration’s COVID-19 vaccine mandate for private employers. TPPF represents a coalition of Texas temporary staffing businesses who are challenging the constitutionality of the mandate.
“Our clients believe that the decision to be vaccinated should be made by individuals and their doctors—not the federal government,” said Robert Henneke, general counsel for TPPF. “In addition to turning private employers into federal vaccine enforcers, the rule will also result in many individuals leaving the workforce entirely, accelerating a trend that has devastated our economic recovery from the pandemic.”
“Threatening the livelihoods of hard working Americans through federal mandates is the latest example of the Biden Administration’s executive overreach,” America First Legal Vice President and General Counsel Gene Hamilton said. “The Biden Administration does not have the authority to mandate that private businesses become de facto vaccine enforcers for the federal government. The mandate is patently unconstitutional and America First Legal is proud to partner with the patriots at TPPF to protect the rights of Americans from an Administration acutely dedicated to chipping them away.”
America First Legal President Stephen Miller added, “These imperial executive mandates are unlawful, unconstitutional, unacceptable, unconscionable and un-American. America First Legal and the Texas Public Policy Foundation have filed these historic lawsuits to defeat these illegal decrees and save our liberties and our constitutional system of government.”
The mandate says all U.S. companies with more than 100 employees must require that their employees either receive the vaccine; or submit to burdensome and expensive weekly testing and wearing a mask while in the workplace. Unvaccinated employees must pay for their own testing. Employers must provide at least four days of paid sick leave to employees when they choose to get vaccinated.
The petition argues the mandate is unconstitutional because it:
- Violates the non-delegation doctrine: Congress did not give OSHA the power to enact a nationwide vaccine mandate, affecting 80+ million people, when it gave them the power to regulate workplace safety. Congress has not given OSHA the power to try and end pandemics.
- Violates the Commerce Clause: The mandate applies even to companies that do business solely inside of Texas, and whose services never cross state lines. States have a general police power; the federal government does not. It is a government of enumerated powers, and it cannot do this by invoking the Commerce Clause.
Under the mandate, which was issued using a seldom-used procedure from the Occupational Health and Safety Administration (OSHA) called an emergency temporary standard (ETS), employers are subject to fines of up to $13,653 per day for each employee that does not comply. These penalties can quickly ruin even the most diligent company. Furthermore, because the rule does not apply to smaller employers, the staffing companies worry that many of their employees could quit and go to work for a smaller competitor.
“Throughout the pandemic, we have witnessed an unprecedented, unconstitutional, and never-ending expansion of government power,” said Matt Miller, senior attorney at TPPF. “This mandate, which says to workers ‘take the vaccine or lose your job,’ represents a line that many people of good will simply will not cross. It is long past time for courts to step in and recognize that the power of the government is restricted by the Constitution, even in times of crisis.”
“Our clients are standing up for themselves and their employees,” said Henneke. “But ultimately, they are standing up for the right of every American to make their own medical decisions, based on advice from their doctors.”
“The fact that the federal government had to dust off the emergency temporary standard, which is a rarely used and rarely successful vehicle for delivering OSHA requirements, tells you that the federal government knows it does not actually have the authority to issue this mandate,” said TPPF’s Miller. “And the fact that the mandate completely ignores natural immunity and barely accounts for religious and medical exemptions tells you that this is more about forcing compliance with the federal government’s whims, rather than developing a sensible workplace safety rule.”
The challenge must be filed directly with the Fifth Circuit under applicable rules of procedure. Under a quirky procedural requirement for challenging OSHA emergency temporary standards, all challenges to the rule will eventually be consolidated—by lottery—in one federal appellate court, which will then make a final determination of the constitutionality of the rule.