- The Washington Times - Thursday, November 4, 2021

Republican attorneys general and a conservative news site are fighting President Biden’s COVID-19 vaccine mandate for private employers, a government mandate that legal scholars say is unprecedented. 

“I don’t know of any federal vaccination mandate until COVID comes along,” said David Miller, a labor and employment law attorney with Bryant Miller Olive. “That is a core state police power area.” 

The challengers claim the requirement is a federal overreach. Mr. Biden has justified it as a final measure to push the minority of Americans still unvaccinated to get the shot, saying their refusal strains the nation’s health resources and puts them and vaccinated Americans alike at greater risk of catching the potentially deadly virus.

The Daily Wire, a conservative news site, asked the 6th U.S. Court of Appeals to hear its challenge. The company argues the Biden administration is violating the Constitution and federal law by requiring private employers to mandate the shot for their employees — or else pay for weekly testing.

The Daily Wire said it’s not the company’s place to know about its employees’ private health decisions. 

“The Daily Wire will not comply with President Biden’s tyrannical vaccine mandate, and we are suing the Biden administration to put a stop to their gross overreach,” said Jeremy Boreing, co-founder of the site. “President Biden, the federal government, social media, and the establishment media have conspired to rob Americans of their freedoms in the name of public health. They have broken faith with the American people through conflicting messaging, false information, and by suppressing data and perspectives with which they disagree.”

Mr. Biden proposed the mandate in a September speech, but it was on Thursday that the Occupational Safety and Health Administration published the rule covering some 84 million workers. 

It directs large companies to require employees to get vaccinated by Jan. 4, or else pay for them to get tested weekly. Employees who are not vaccinated will also have to wear a face mask.

Under the rule, employers must also give employees paid leave for them to get the shot and recover from any side effects.

Employers are subject to a $14,000 fine per violation under the new federal rule.

Harmeet K. Dhillon, partner at the Dhillon Law Group representing the Daily Wire alongside Alliance Defending Freedom, said the federal government lacks the authority to order private employers to play a role with the vaccines.

“The Biden administration’s attempt to impose this unprecedented and unlawful federal medical mandate on the U.S. workforce without considering the public’s views is arbitrary, capricious, unsupported by the evidence, and would produce a willfully ignorant rule,” she said.

Mr. Miller said infectious agents aren’t necessarily part of OSHA’s “wheelhouse.” The regulatory agency oversees workplace safety standards under the Department of Labor.

“This is not a workplace hazard, …this is a germ floating around the entire world,” he said. “There’s not going to be any shortage of lawsuits.” 

Missouri Republican state Attorney General  Eric Schmitt has already begun exploring legal challenges to the new rule as well, announcing he will be filing a lawsuit on Friday. 

“I’ve been in discussions with businesses in Missouri, including a trailer manufacturing company in mid-Missouri, who say that this vaccine mandate will crush their business,” said Mr. Schmitt, who is running for U.S. Senate. “We will be on file first thing [Friday] morning to halt this illegal, unconstitutional attempt by the Biden administration and the federal government to impose their will on thousands of Missouri businesses and millions of Missourians.”

Arizona Attorney General Mark Brnovich and Montana Attorney General Austin Knudsen, both Republicans, are also planning to challenge the rule this week. 

The Justice Department declined to comment about the pending lawsuits. 

Josh Blackman, a professor at South Texas College of Law, also noted the federal rule has “very weak” protections for workers who want to claim a religious exemption from getting the shot.

“There is no precedent for a sweeping mandate that governs nearly 100 million employees,” he said. “I think this rule will be held up in litigation for some time.” 

• Tom Howell Jr. contributed to this report.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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