- The Washington Times
Sunday, November 7, 2021

The White House is bracing for a prolonged legal battle against President Biden’s vaccine mandate after the new rules for large employers suffered a temporary setback in federal court and scores of Republican-led states piled on with lawsuits.

Nevertheless, White House Chief of Staff Ron Klain said Sunday that he is confident the mandate for COVID-19 vaccines or weekly testing will hold up in court and will take effect as planned in early January.


“If OSHA can tell people to wear a hard hat on the job, to be careful around chemicals, it could put in place these simple measures to keep our workers safe,” Mr. Klain said on NBC’s “Meet the Press.”

A day earlier, the 5th U.S. Circuit Court of Appeals issued a temporary order to halt the rule from the Occupational Safety and Health Administration. The ruling cited “grave statutory and constitutional” issues in granting the stay, which was sought by religious organizations.

One of those cheering the stay was Kelly Shackelford, the president and chief counsel of public interest law firm First Liberty Institute, which brought the legal action on behalf of Daystar Television Network and the American Family Association.

“We don’t live in a dictatorship where a president can issue an edict and take over all of the large companies in our nation and the lives of over 84 million Americans,” he said. “The mandate is massively unconstitutional and violates statutory law as well. We’re pleased that the 5th Circuit has stopped it from being implemented.”

The quick decision from the three-judge panel also was applauded by Republicans, who warn that Mr. Biden’s workplace mandate is executive branch overreach.

“The 5th Circuit got this one right — these vaccine mandates are unconstitutional slop. The vaccines themselves are miracles of modern medicine and American ingenuity. But we’re not going to beat this awful virus with extreme partisanship or unconstitutional executive orders,” said Sen. Ben Sasse, Nebraska Republican. “The OSHA mandate is unconstitutional, and at the end of the day will only increase vaccine hesitancy. The president should take a long look at this decision and reverse course before the courts embarrass him again.”

Mr. Klain said the fight is just beginning.

“I’m quite confident that when this finally gets fully adjudicated, not just a temporary order, the validity of this requirement will be upheld,” he said.

“These vaccine requirements have been litigated up and down the courts all over the country,” he said. “State requirements, for example, one in Maine. And every single court before this one ruled that they were valid. The Supreme Court has turned back several times already various efforts to enjoin other vaccine requirements.”

OSHA published its long-awaited rule on Thursday, kicking the mandate wars into overdrive.

Republican lawmakers and allies are fighting the mandate, which requires companies with 100 or more workers to determine the vaccination status of their workers by Dec. 5 and begin regular testing of those who remain unvaccinated by Jan. 4.

Given the timeline, Mr. Klain said, the 5th Circuit’s decision has little impact.

“I think what it means, for the time being, is that the effectiveness of that vaccine requirement is frozen,” Mr. Klain said. “I think it will certainly be well-litigated, though, well before January 3rd. So I’m not sure it really has much practical effect in the short run.”

OSHA projects that 23 million more Americans will get vaccinated because of the rule, though some private modeling suggests a milder impact.

Only 58% of the U.S. population is fully vaccinated for COVID-19, although nearly 8 in 10 eligible have received at least one shot.

The Food and Drug Administration and Centers for Disease Control and Prevention recently made 28 million children ages 5-11 eligible for vaccination.

In addition to at least three separate legal actions from faith-based employers, nearly two dozen Republican-run states have announced federal lawsuits against the mandate.

Missouri’s Eric Schmitt is one of 11 state attorneys general who have argued in court papers that the requirement violates their rights. They said states should have authority over police powers to patrol citizens’ safety.

“For over a century, the U.S. Supreme Court has recognized that policies on compulsory vaccination lie within the police powers of the States, and that ‘They are matters that do not ordinarily concern the national government,’” the complaint said.

Joining the petition to the 8th U.S. Circuit Court of Appeals are Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire and Wyoming.

Other states also teaming up to challenge Mr. Biden’s vaccine mandate are Texas, Louisiana, Mississippi, South Carolina and Utah, which filed a lawsuit in the 5th Circuit Court. Oklahoma, Kentucky, Idaho, Kansas, Ohio, Tennessee and West Virginia filed a lawsuit in the 6th U.S. Circuit Court of Appeals.

Mr. Biden proposed the mandate in a September speech, and OSHA rolled out the rules last week. They apply to 84 million workers.

The mandate directs large companies to require employees to be vaccinated by Jan. 4 or make sure they are tested weekly. Employees who are not vaccinated will have to wear face masks.

Employers must give employees paid leave to get the vaccines and recover from any side effects. They are subject to a $14,000 fine per violation under the federal rule.

“The federal government should not be forcing private employers to require their employees to get vaccinated or foot the cost to test those employees weekly,” said Mr. Schmitt, who is running for U.S. Senate.

• Alex Swoyer and Mark A. Kellner contributed to this report.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.


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