Experts say promised lawsuits aimed at stopping or slowing a vaccine mandate are likely to fail
President Joe Biden’s new broad set of COVID-19 vaccine mandates aimed at pushing Americans who have not yet received the COVID-19 vaccine to do so drew an instant and strong response from his political opponents.
Republican governors, lawmakers, and commentators denounced Biden’s plan, which was presented Thursday, as a significant government overreach and promised to sue to block enforcement. Biden has advocated for obligatory vaccinations or regular testing in the majority of workplaces and signed an executive order mandating all executive branch employees and contractors to get vaccinated, with no exceptions for those who prefer testing.
“Joe Biden told Americans when he was elected that he would not impose vaccine mandates. He lied,” said Republican National Committee (RNC) Chairwoman Ronna McDaniel.
She further stated that the RNC will sue the Biden administration on behalf of “small businesses and workers [who] do not have the money or legal resources to fight Biden’s unconstitutional actions and authoritarian decrees.”
Biden’s directives are far from obvious as to whether they are unconstitutional or illegal. According to experts, they will almost certainly survive a legal challenge. However, they do signal a shift in position for a White House that has always avoided appearing to criticize or coerce unvaccinated individuals.
New tone from Biden
In a shift from his previous comments on the virus, Biden explicitly addressed the unvaccinated, accusing them of putting themselves and others at risk.
“We’ve been patient, but our patience is wearing thin,” Biden said in his White House speech.
“And your refusal has cost all of us.”
“A distinct minority of Americans, supported by a distinct minority of elected officials, are keeping us from turning the corner,” Biden added. “These pandemic politics are making people sick, causing unvaccinated people to die.”
The United States is currently experiencing an average of around 150,000 new coronavirus cases each day, owing mostly to the rise in the delta variant. Each day, over 1,500 deaths are reported, which is more than at any point since March. The vast majority of those killed were unvaccinated.
New mandates
Among the new measures proposed by Biden is a mandate that, with rare exceptions, all federal employees and contractors doing business with the government be vaccinated against the virus. A previous position, which let non-vaccinated workers to continue working if they tested periodically and wore masks, has been eliminated. Those who do not comply now face termination. The new rule will touch more than 4 million executive branch and armed forces personnel, as well as millions of other contractors.
Additionally, any firms with more than 100 employees are required to demand their staff to be vaccinated or to undergo weekly COVID-19 tests. Around 80 million Americans would be affected by the rule, which would be implemented by the Occupational Safety and Health Administration.
Additionally, the administration stated that it would require vaccinations for all employees at hospitals that accept Medicare or Medicaid payments, which would cover an additional 17 million people. Additionally, the administration is requiring all enterprises to provide paid time off for vaccines and is urging large entertainment venues to require proof of immunization prior to admission.
In total, the rules will affect more than 100 million American workers, or roughly two-thirds of the workforce, even though a sizable proportion are already vaccinated. According to the Centers for Disease Control and Prevention in the United States, little more than 75 percent of american adults have received at least one shot.
Republicans blast Biden
“Biden’s vaccine mandate is an assault on private businesses,” said Republican Texas Gov. Greg Abbott on Twitter. “I issued an Executive Order protecting Texans’ right to choose whether they get the COVID vaccine & added it to the special session agenda. Texas is already working to halt this power grab.”
“The Biden administration’s recent announcement seeking to dictate personal freedom and private business decisions is an insult to our American principles of individual liberty and free enterprise,” said Republican Missouri Gov. Mike Parsons. “This heavy-handed action by the federal government is unwelcome in our state and has potentially dangerous consequences for working families.”
“Vaccination protects us from serious illness, but the decision to get vaccinated is a private health care decision that should remain as such,” he said. “My administration will always fight back against federal power grabs and government overreach that threatens to limit our freedoms.”
Reaction to Biden’s announcement was far more positive among Democratic governors.
“Vaccines are the best way for us to get through this pandemic,” tweeted Virginia Gov. Ralph Northam in response to a presidential tweet announcing the mandate. “That’s why we have required vaccinations for over 120,000 state employees—and it’s making our Commonwealth safer.”
Several Republicans promised a legal challenge to the administration’s vaccine mandate.
“I will pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration,” said Georgia Gov. Brian Kemp.
‘See you in court’
Republican Gov. Mark Gordon of Wyoming said, “I have asked the Attorney General to stand prepared to take all actions to oppose this administration’s unconstitutional overreach of executive power. It has no place in America. Not now, and not ever.”
South Dakota Gov. Kristie Noem tweeted directly to the president, saying, “See you in court.”
Despite Republican lawmakers’ confident assertions that the mandate is illegal, experts believe that challenges to halt implementation are likely to fail, with many citing a 1905 Supreme Court case that states can compel vaccines.
Other suits unsuccessful
Two recent federal court challenges to similar vaccine mandates both lost. One was brought by former workers of Houston Methodist Hospital who were terminated for noncompliance, and another by students at Indiana University who were opposing the university’s vaccine requirement. The Indiana plaintiffs filed an appeal, but conservative Justice Amy Coney Barrett refused to send the issue to the full court.
“OSHA has fairly broad authority delegated to it to ensure worker safety,” said Brian Dean Abramson, an adjunct professor of vaccine law at Florida International University and the author of the BloombergLaw/American Health Law Association treatise Vaccine, Vaccination, and Immunization Law.
“The broad strokes of what has been presented — that employers with over 100 employees require employees be vaccinated or have some other measures in place to prevent the spread of infection or face an OSHA fine — I think that is likely to ultimately be upheld,” Abramson said.
Additionally, he stated that given the courts’ reluctance to block implementation of requirements in the Houston Methodist and Indiana University cases, the lawsuits are unlikely to halt the deployment of an OSHA vaccine mandate.
“My gut instinct is that this will not be put on hold,” Anderson said.
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