America First Legal Partners With Texas Public Policy Foundation To Challenge Biden’s Unconstitutional OSHA Vaccine Mandate

Friday, November 5, 2021

Today, America First Legal and the Texas Public Policy Foundation’s Center for the American Future filed a petition in the U.S. Court of Appeals for the Fifth Circuit challenging the Biden Administration’s COVID-19 vaccine mandate for private employers. 

The mandate requires all U.S. companies with more than 100 employees to either require their employees to receive the vaccine or to submit to burdensome and expensive weekly testing and wearing a mask while in the workplace. Among other things, 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. 

The petition argues the mandate is unconstitutional because it:

– 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 try and 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.

Under the mandate, employers are subject to fines of up to $13,653 per day for each employee that does not comply.  

The challenge must be filed directly with the Fifth Circuit. Under a quirky procedural requirement for challenging OSHA Emergency Temporary Standards, if multiple challenges are filed across the country, all challenges to the rule will eventually be consolidated—by lottery—in one federal appellate court, which will then adjudicate the cases.

Statement From America First Legal President Stephen Miller: 

These imperial executive mandates are unlawful, unconstitutional, unacceptable, unconscionable and un-American. America First Legal and the Texas Public Policy Foundation have filed these historic lawsuits to defeat these illegal decrees and save our liberties and our constitutional system of government,” Stephen Miller said. 

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

Threatening the livelihoods of hard working Americans through federal mandates is the latest example of the Biden Administration’s executive overreach,” America First Legal Vice President and General Counsel Gene Hamilton said. “The Biden Administration does not have the authority to mandate that private businesses become de facto vaccine enforcers for the federal government. The mandate is patently unconstitutional and America First Legal is proud to partner with the patriots at TPPF to protect the rights of Americans from an Administration acutely dedicated to chipping them away,” Gene Hamilton said. 

Statement From General Counsel for Texas Public Policy Foundation Robert Henneke: 

Our clients believe that the decision to be vaccinated should be made by individuals and their doctors—not the federal government,” said Robert Henneke, general counsel for TPPF.  “In addition to turning private employers into federal vaccine enforcers, the rule will also result in many individuals leaving the workforce entirely, accelerating a trend that has devastated our economic recovery from the pandemic.” 

Our clients are standing up for themselves and their employees,  but ultimately, they are standing up for the right of every American to make their own medical decisions, based on advice from their doctors,” Robert Henneke said.

Statement From Senior Attorney at Texas Public Policy Foundation Matt Miller: 

Throughout the pandemic, we have witnessed an unprecedented, unconstitutional, and never-ending expansion of government power,” said Matt Miller, senior attorney at TPPF.  “This mandate, which says to workers ‘take the vaccine or lose your job,’ represents a line that many people of good will simply will not cross. It is long past time for courts to step in and recognize that the power of the government is restricted by the Constitution, even in times of crisis.” 

The fact that the federal government had to dust off the emergency temporary standard, which is a rarely used and rarely successful vehicle for delivering OSHA requirements, tells you that the federal government knows it does not actually have the authority to issue this mandate. And the fact that the mandate completely ignores natural immunity and barely accounts for religious and medical exemptions tells you that this is more about forcing compliance with the federal government’s whims, rather than developing a sensible workplace safety rule,” Matt Miller said.

Read Texas Public Policy Foundation’s press release here.

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