States Gear Up for Legal Fight Over Vaccine Mandate

So far 27 states have voiced opposition to federal vaccine mandate, which governors say infringes on personal liberty
By Petr Svab
Petr Svab
Petr Svab
reporter
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.
September 14, 2021 Updated: September 14, 2021

Nearly all Republican-led states have voiced opposition to the vaccine mandate announced by President Joe Biden last week. Many of them have vowed to fight the mandate in court, but held back on voicing specific legal strategies as details of the Biden administration’s policy remain unknown.

The mandate would require businesses with more than 100 employees to have staff either vaccinated against COVID-19 or be tested weekly for the disease. It would be put in place through the Occupational Safety and Health Administration (OSHA), according to Biden.

Governors and attorneys general in at least 27 states, all Republicans, made comments in opposition to the mandate. They all generally support vaccinations and some of them even support vaccine mandates in private businesses. However, they largely oppose the notion that businesses should be forced to require vaccination, especially by the federal government.

Arizona Attorney General Mark Brnovich has already filed a lawsuit against the mandate, arguing it violates the equal protection clause of the Constitution. The Biden administration is targeting mandatory vaccination for American workers, but doesn’t require vaccination of those brought in after being caught crossing the southern U.S. border illegally, thus demonstrating “unconstitutional” bias “in favor of unauthorized aliens,” Brnovich’s Sept. 14 brief says.

One of the most forceful statements opposing the mandate came from South Carolina Gov. Henry McMaster, who promised to fight the Biden administration “to the gates of hell to protect the liberty and livelihood of every South Carolinian.”

The critics most often called the mandate a power grab, federal overreach, divisive, counterproductive, un-American, and unconstitutional.

“I’m 100 percent against this vaccine mandate because I believe it should be a personal health care choice,” Nebraska Gov. Pete Ricketts told The Epoch Times.

He acknowledged there are other vaccines that are mandatory in various settings. But those vaccines are much more established, he pointed out, while the COVID-19 vaccines have been around for less than a year and “there hasn’t been that time to disseminate the information” about it.

Those resistant to getting the vaccines tend to mistrust health authorities, in Ricketts’s experience.

“They just don’t know who to believe,” he said.

He blamed the Centers for Disease Control and Prevention and Dr. Anthony Fauci, the head of the National Institute of Allergy and Infectious Diseases, “for their inconsistency and how they delivered the message.”

Fauci and others in the government have been inconsistent on a number of issues, including recommendations initially to not wear, and later to wear, masks and on the percentage of the population that needs to be vaccinated to achieve herd immunity. In the spring of 2020, when much of the country was under strict lockdown, authorities refused to speak out against mass protests and riots across the country sparked by the death of George Floyd, a black man, during an arrest in Minneapolis.

Meanwhile, they criticized other gatherings and protests.

The mandate also appears to overlook different realities in different states.

Nebraska, for instance, has one of the lowest COVID-19 death rates in the country, despite few restrictions.

“We never did a statewide mask mandate; we never did a stay-at-home order. We’ve tried to manage this with the lightest touch possible because I believe in personal liberty,” Ricketts said.

Florida Gov. Ron DeSantis said he opposes the mandate on the grounds of personal liberty to make medical decisions. But even if he did support it in principle, he would still oppose Biden’s idea, he indicated during a Sept. 13 press conference.

He particularly took issue with the mandate apparently including people who’ve already had COVID-19 and who, according to some studies, enjoy immunity that’s superior to that produced by the vaccines.

“If you’re really following science, you would acknowledge this natural immunity,” DeSantis said.

The mandate may even exacerbate the problems it’s claimed to alleviate, he suggested.

One argument for the mandate is that the unvaccinated need to be forced to taking the jab to reduce the risk that they end up occupying hospital beds and overwhelming the health care system.

But it hasn’t been so much a problem of beds, but rather a lack of staff, especially nurses, according to DeSantis, whose state has seen some hospitals swamped with COVID-19 patients.

Given that a significant share of health care workers refuse the vaccines, he asked how the mandate would help with staff shortages.

“Are you going to fire all these nurses who have been treating COVID patients or have been working all this time?” he asked. “And again, most of them, many of them have already likely had COVID and recovered and do have natural immunity. So it ends up taking issues with the health system and probably exacerbating it dramatically.”

When it comes to specifics of how to oppose the mandate, at least a dozen governors and attorneys general said they would sue. It isn’t clear yet, though, what legal arguments they’d raise.

“The U.S. Department of Labor and OSHA will have to promulgate regulations on this and then, we will have a better idea of how to attack this from a legal standpoint,” Ricketts said.

“But we are absolutely exploring all those opportunities and put everything on the table.”

DeSantis’s press secretary, Christina Pushaw, was similarly general.

“We’re looking at all legal options to protect the rights of employees, and Governor DeSantis encourages business owners to respect their employees’ rights to medical privacy,” she told The Epoch Times via email.

One viable avenue could be to attack the Biden administration’s authority to issue the mandate through OSHA, according to Ilya Somin, a law professor at George Mason University.

Under the 1970 OSHA Act, the agency can impose an “Emergency Test Standard” in cases in which it determines “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

The administration may claim that COVID-19 falls into the category of “new hazards,” but Somin questioned whether the disease is a new hazard, since it’s been around for more than a year and a half, and whether the statute only applies to “a dangerous substance or agent that is novel” rather than a hazard of any nature.

He further questions whether COVID-19 poses a “grave danger” to employees, given that they can easily get vaccinated.

“Virtually any workplace activity poses grave dangers to at least some people, if none of the latter can be expected to take even minimal precautions on their own,” he said in recent Reason op-ed.

Governors or attorneys general of the following states have spoken in opposition to the mandate: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.

Petr Svab
Petr Svab
reporter
Petr Svab is a reporter covering New York. Previously, he covered national topics including politics, economy, education, and law enforcement.