A group of 47 Republican senators and 136 House members is asking the Supreme Court to block enforcement of President Biden's vaccine mandate for businesses with 100 or more employees, arguing that the president and the Occupational Safety and Health Administration (OSHA) are exceeding their authority.
"Vaccine mandates—a prototypical state police power— are not within the purview of the Occupational Safety and Health Act," the members tell the Court, "let alone something on which Congress intended OSHA to take unilateral action under its ‘emergency’ powers."
The Supreme Court recently scheduled an unusual Jan. 7 oral argument on an emergency appeal related to the vaccine mandate. The court normally decides such appeals on the briefs only.
The argument will consider a request to bar the Biden administration from enforcing the mandate while lower courts decide whether it is constitutional. The Fifth Circuit Court of Appeals recently initially blocked the mandate, but the Sixth Circuit overruled that in a consolidated appeal, triggering a flurry of requests for the Supreme Court to reinstate the stay from opponents of the mandate.
The amicus curiae – Latin for "friend of the court" – brief from the Republican members of Congress argues that they are "concerned with the executive overreach seen in the current administration’s response to the COVID19 pandemic.
"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," the brief continues. "In this case, the promulgation by the Occupational Health and Safety Administration (OSHA) of a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern."
Reps. Elise Stefanik, R-N.Y., Jim Banks, R-Ind., Virginia Foxx, R-N.C., Rick Allen, R-Ga., and Sen. Mike Braun, R-Ind., are leading the brief. It follows a bipartisan effort in the Senate to pass a Congressional Review Act resolution aimed at blocking enforcement of the rule, which requires employees at large companies to either get vaccinated or get tested weekly.
But the House is unlikely to take up the legislation, leaving the courts as mandate opponents' only option to block what they see as a major overreach of bureaucratic authority to dictate an outcome in a hugely controversial political debate.
"A vaccine requirement is functionally an outside-the-workplace requirement that individuals take action to provide themselves with better individual outcomes when they do contract the virus," the brief says. "But that’s not OSHA’s job. It was never meant to be the health police, ‘protect[ing] unvaccinated working people from themselves based on highly personal medical decisions.’"
The brief also argues that OSHA was never meant to protect workers from viruses like COVID-19, but instead to protect them from specific workplace hazards.
"The ETS provision of the OSH Act allows OSHA to address only ‘grave danger’ in the workplace, which includes any ‘toxic or physically harmful’ agent," it says. "In the statutory scheme established by Congress, these conditions are a meaningful restraint on the agency. OSHA, however, aggressively reads the restrictions as an opportunity for the agency to branch out into public healthcare policy."
The Biden administration, meanwhile, says the coronavirus is a major threat to workers' health and that mandate opponents' arguments are not based in the law.
"The novel COVID-19 virus is both an ‘agent’ that is ‘physically harmful’ and a ‘new hazard,’" the administration argued at the Sixth Circuit. "OSHA can address dangers in the workplace, and Congress did not limit OSHA’s authority to petitioners’ atextual and undefined subset of dangers."
"OSHA properly determined that employees are exposed to a grave danger from COVID-19 in the workplace. COVID-19 is widespread in America’s workplaces, and, as a result, every day workers are being hospitalized and ‘many are dying,’" it added.
The numerous groups that sued to invalidate the vaccine mandate include the National Federation of Independent Businesses, the National Retail Federation, the Texas Trucking Federation, the Tennessee Chamber of Commerce and Industry, the Job Creators Network and many others.
The justices on the same day will also hear challenges to Biden's vaccine mandate for health care workers.