- The Washington Times
Tuesday, January 4, 2022

Nearly all Senate Republicans and two-thirds of House GOP members urged the Supreme Court on Tuesday to strike down President Biden’s COVID-19 vaccinate-or-test rule on private employers, arguing in a legal brief that Occupational Safety and Health Administration officials went beyond the scope of powers granted to it by Congress.

Sen. Ron Johnson, the Wisconsin Republican who announced the effort, said 47 senators and 139 House members also contend Mr. Biden used an emergency temporary standard to rush the rule-making process and that OSHA’s federal mandate makes it difficult for state and local governments to tailor their pandemic responses to local needs.

“Congressional members have an interest in the powers they delegate to agencies not being abused — the legislative authority vested in the federal government belongs to Congress, not the executive branch. In this case, the promulgation by the Occupational Safety and Health Administration of a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency,” the lawmakers wrote. “Moreover, congressional members — as representatives of the people of their states and districts — have an interest in the citizens they represent being able to craft local solutions to problems facing their states and districts. Federalism concerns should be addressed before requiring federally-imposed solutions.”

The OSHA standard, arguing that COVID-19 represents an unprecedented threat to workplace safety and worker health, requires companies with 100 or more workers to figure out which employees are unvaccinated and test them weekly. It is the biggest flashpoint in the nation’s vaccine-mandate wars because it treads into the private sector.

More than two dozen industry groups are challenging the mandate, citing the way it was issued and the potential upheaval in workplaces as businesses struggle with staffing and other headaches.

The Supreme Court is taking up the case after a volley of decisions in the lower courts. One appeals court stayed the ruling for a period before the U.S. Court of Appeals for the 6th Circuit lifted the stay, prompting the justices to take up the issue.

OSHA said because of the upheaval, it will not enforce the testing requirement on unvaccinated persons until Feb. 9. As initially drafted, the testing requirement would have gone into effect on Tuesday.

Many congressional Republicans say they support the COVID-19 vaccines as a disease-fighting tool but oppose mandates.

The White House says that while vaccination would make workers’ lives easier under the rule, the new standard amounts to a weekly testing requirement for the unvaccinated and does not actually compel a person to get one of the approved vaccines.

There are 50 Republican senators. Senate Minority Leader Mitch McConnell signed onto the amicus brief, but Republican Sens. Susan Collins of Maine, Mitt Romney of Utah and Tommy Tuberville of Alabama were not listed as signers.

Besides Republican lawmakers, former Vice President Mike Pence, through his political advocacy organization, urged the justices to block the OSHA rule to “protect American livelihoods and businesses, and to safeguard our Constitution.”

The justices will hear oral arguments Friday on the OSHA rule and a separate challenge against Mr. Biden’s COVID-19 vaccine mandate on millions of health workers.

For more information, visit The Washington Times COVID-19 resource page.

Corrections: An earlier version of this story referred to the words in OSHA‘s full name in the wrong order. It is the Occupational Safety and Health Administration. The article also misidentified Sen. Mitch McConnell. He is Senate minority leader.

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

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