Fact Check: Are Biden’s Vaccination Warrants ‘Illegal’?

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By Tara Subramaniam, CNN

President Joe Biden new vaccine requirements could apply to as many as 100 million Americans, or nearly two-thirds of the American workforce, and has resulted in a predictable decline from a handful of Republican states, making it the final frontier in the struggle between the administration and state officials over how to address the pandemic in progress.

Although the specific rules for the vaccines mandate have yet to be written, several Republican state officials have already said they intend to challenge them. Arizona Attorney General announcement Tuesday that the state is suing Biden and other administration officials on the grounds that the vaccine warrants are “unconstitutional.” South Dakota Republican Governor Kristi Noem claims warrants are a “glaring example of federal intrusion” and Georgia Governor Brian Kemp called under Biden’s plan, “patently illegal overbreadth.”

As part of his plan to ramp up vaccinations, Biden last week directed The Ministry of Labor will require all businesses with 100 or more employees to require their employees to either be vaccinated or tested for Covid-19 once a week.

Major business lobbies like the US Chamber of Commerce have largely been favorable of the proposed vaccination mandate. The AFL-CIO and a number of large unions were also in favor of the mandate, although there was opposition from several law enforcement unions, some of which have questions about how Biden intends to implement his plan.

Biden’s plan relies on the Labor Department’s ability to issue “a temporary emergency standard” to protect workers from new hazards, as long as “employees are in serious danger” and the standard “is needed. to protect them ”from this danger. This power arises from the Occupational Safety and Health Act 1970.

This authority is however rarely used and previous proceedings have been challenged in court. Prior to the coronavirus pandemic, this authority had not been used since 1983 when courts struck down a temporary emergency standard on asbestos, according to a July 2021 ruling. report of the Congress Research Service. In June 2021, the Occupational Safety and Health Administration, a regulatory body within the Department of Labor, Posted an emergency temporary standard outlining measures to protect healthcare workers at higher risk of exposure to Covid-19.

How the current situation compares to previous ones

Legal experts who spoke to CNN suggested Biden’s tenure and OSHA’s new temporary emergency standard could face an uphill battle ahead.

The legality of the new mandate “will depend on how OSHA articulates the” grave danger “at issue here, and how courts hearing the inevitable challenges view the issue,” Labor and Jobs Brett Coburn, of Alston & Bird LLP, told CNN.

“Arguably, preventing the spread of Covid in the workplace provides the strongest rationale for using a temporary emergency standard that OSHA has seen for over 50 years,” said Lindsay Wiley, director of the Health Law and Policy Program at American University.

Josh Blackman, a professor at the South Texas College of Law specializing in constitutional law, is less convinced that OSHA’s power to impose a temporary emergency standard is applicable to deal with the current situation.

“You’re basically trying to take an old law and give it new life,” Blackman said. “I think the courts are often skeptical when the government looks at this 50 year old law and finds the exact authority needed to deal with this kind of urgent crisis.”

According to Blackman, further lawsuits from states and other employers in response to Biden’s new vaccine requirements are likely and, therefore, “a judge somewhere is going to oppose this practice and it is going to be. suspended “.

In the meantime, “I think the result is that this will give some employers cover to impose a mandate that they otherwise might not have been able to,” Blackman said.

It should be noted that there is legal precedent for immunization mandates, but primarily in contexts other than employment.

“The Supreme Court had already ruled in 1905 in Jacobson v. Massachusetts that there was no constitutional right to opt out of a vaccination mandate calculated to protect the community,” Anthony Kreis, professor at the Georgia State University College of Law. “That’s why we can legitimately have vaccination requirements so that children can go to school, for example.”

This 1905 Supreme Court decision is seen as the most relevant case supporting the legality of vaccination mandates. Even conservative judge Neil Gorsuch has reported that he would vote in favor of the Massachusetts vaccine mandate if the Jacobson case was in court today.

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