AFL Responds To 5th Circuit Stay On Biden’s Unconstitutional Vaccine-or-Test Mandate

Saturday, November 13, 2021

WASHINGTON, DC – American First Legal (AFL) is thrilled that the United States Court of Appeals for the Fifth Circuit upheld its prior stay on President Biden’s unlawful, unconstitutional mandate that required companies with 100 workers to require COVID-19 vaccines for their employees, or subject them to regular testing and strict workplace protocols. 

Under President Biden’s mandate, unvaccinated employees must pay for their own testing, and employers must provide at least four days of paid sick leave to employees when they choose to get vaccinated. Furthermore, employers are potentially subject to fines of up to $13,653 per day for each employee that does not comply.  

America First Legal partnered with the Texas Public Policy Foundation, along with a coalition of other challengers in different cases, to contest the Biden Administration’s COVID-19 vaccine mandate for private employers. 

AFL and TPPF argued that the mandate is unconstitutional. In the brief asking for a stay, the two main arguments were that the mandate: 

– Violates the non-delegation doctrine: Congress did not give OSHA the power to enact a nationwide vaccine mandate, affecting 80+ million people, when it gave them the power to regulate workplace safety. Congress has not given OSHA the power to end pandemics.

– Violates the Commerce Clause: The mandate applies even to companies that do business solely inside of Texas, and whose services never cross state lines.  States have a general police power; the federal government does not.  It is a government of enumerated powers, and it cannot do this by invoking the Commerce Clause.

On Friday, Circuit Court Judge Kurt Engelhardt cited similar Commerce Clause and non-delegation doctrine arguments AFL and TPPF presented: 

– “The Mandate likely exceeds the federal government’s authority  under the Commerce Clause because it regulates noneconomic inactivity that  falls squarely within the States’ police power. A person’s choice to remain  unvaccinated and forgo regular testing is noneconomic inactivity…The Commerce Clause  power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power.”

– “The Occupational Safety and Health  Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human  resources.” See 29 U.S.C. § 651 (statement of findings and declaration of  purpose and policy). It was not—and likely could not be, under the  Commerce Clause and nondelegation doctrine—intended to authorize a  workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health  affecting every member of society in the profoundest of ways. On the dubious assumption that the Mandate does pass constitutional  muster…”

America First Legal is committed to fighting back against the Biden Administration’s unconstitutional vaccine mandate, as well as other examples of blatant executive overreach this administration puts forth on a near daily basis. 

Statement from America First Legal Vice President and General Counsel Gene Hamilton: 

All Americans should be excited about the Fifth Circuit’s affirmation of its stay of the Biden Administration’s OSHA vaccine mandate. Under our Constitution, our federal government is one of limited powers—it is not an all-powerful government that can dictate very aspect of American life. President Biden is not a king. The Court’s rejection of his Administration’s assertion of these broad, sweeping powers should serve as a warning for other components of their radical agenda,” Gene Hamilton said.

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