Sen. Joe Manchin (D-W.Va.) has indicated that he may vote with Republicans to strike down President Joe Biden’s wide-reaching private sector COVID-19 vaccine mandate, adding another threat to a list of growing legal challenges against the measure.
Through a political procedure instituted in the 1990s, Manchin’s defection would be enough to overturn the private sector mandate entirely.
Biden introduced a sweeping vaccine mandate in September, telling the nation that “our patience is wearing thin” with the millions of Americans who have chosen to not get vaccinated against the CCP (Chinese Communist Party) virus.
The mandates would apply to all federal employees, including military personnel and federal contractors. They would also extend into the private sector, requiring that all firms with 100 employees or more mandate vaccination or weekly testing for the virus.
To enact the mandates, Biden asked the Occupational Safety and Health Administration (OSHA) to declare an emergency temporary standard. In the past, such standards have been used to guard employees against dangerous chemicals or other similar toxins.
OSHA said in a statement to The Epoch Times that the emergency temporary standard would “ensure [that a firm’s] workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.”
In total, Biden’s mandate would extend to roughly 100 million Americans, nearly a third of all U.S. citizens.
On Nov. 18, Republicans in the Senate issued a formal challenge to the measure in hopes of overturning the rule entirely. All 50 Republicans in the upper chamber have joined with Sen. Mike Braun (R-Ind.) and Senate Minority Leader Mitch McConnell (R-Ky.) to challenge the measure under the Congressional Review Act (CRA).
The CRA, approved in the 1990s under Speaker of the House Newt Gingrich, allows Congress to review and, if necessary, overturn new federal regulations put into place by federal administrations such as OSHA. If a rule is overturned under this procedure, federal administrations are forbidden from issuing the same or a substantially similar rule.
A CRA motion can be passed by a simple majority, without the risk of a filibuster. Thus, the motion could pass with a single Democratic defection. And Manchin, West Virginia’s moderate firebrand who has stood against his party on several occasions, has indicated that he may be willing to provide that one extra vote.
“I’ve been very supportive of the mandate for federal government, for military, for all the people that work on government payroll,” he told reporters. “I’ve been less enthused about the private sector.”
However, Manchin also refused to commit either way.
“We’re working through it,” he said.
Aside from congressional maneuvering, Biden’s effort to mass vaccinate Americans working in the private sector has hit a roadblock in the courts.
Referencing Biden’s “thinning patience,” 5th Circuit Court of Appeals Judge Kurt D. Engelhardt wrote that to protect “our constitutional structure … the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials” must be upheld. Following this blistering condemnation of Biden’s policy, OSHA announced a decision to suspend its implementation and enforcement of the policy.
On the state level, Republican leaders have been setting the stage to challenge the Biden mandates.
According to a report by the National Academy for State Health Policy, two states—Montana and Tennessee—have banned vaccine mandates by private employers. In Montana, unvaccinated individuals are guaranteed the same treatment by employers and under law as their vaccinated counterparts, with all forms of discrimination, including employment, being barred. A law signed by Tennessee Gov. Bill Lee guarantees much the same to Tennesseans.
Private employers in seven states—Florida, Alabama, West Virginia, Utah, Iowa, Arkansas, and Texas—are permitted to mandate vaccines for their employees, but must allow employees to opt out on personal, moral, religious, health, or other grounds.
The mandate also has caused an almost unprecedented coalition of attorneys general from nearly half of the country—24 states—to band together in opposition to the measure.
“Mr. President, your vaccination mandate represents not only a threat to individual liberty, but a public health disaster that will displace vulnerable workers and exacerbate a nationwide hospital staffing crisis, with severe consequences for all Americans,” the attorneys general wrote in a letter addressed to Biden. “If your Administration does not alter its course, the undersigned state Attorneys General will seek every available legal option to hold you accountable and uphold the rule of law.”
Thus, the Senate is only one avenue being used to challenge the Biden vaccine mandates, which could still be rendered illegal or moot through other means.
Still, if Manchin were to vote with Republicans to strike down the OSHA rule, Biden would have little additional recourse and the CRA measure would permanently bar OSHA from instituting a significantly similar policy.