GOP Attorneys General Oppose Vaccine Mandates; Democratic AG Supports

Attorney General Alan Wilson joins 20 states in legal action against President Biden’s vaccine mandate for federal contractors

(COLUMBIA, S.C.) - In an effort to protect South Carolina workers’ rights, Attorney General Alan Wilson is joining an effort against President Joe Biden’s federal contractor vaccine mandate. Attorney General Wilson joined 20 other state attorneys general in signing on to an amicus brief supporting the Commonwealth of Kentucky’s suit seeking an immediate end to the president’s unlawful mandate that requires federal contractors to ensure all employees receive a COVID-19 vaccine. There are many South Carolina companies that will be negatively impacted by the unlawful requirements.

Attorney General Wilson said, “The powers of the states-protected by the Constitution- cannot be wiped away by the President’s seizure of power. This is about upholding the Constitution and the rule of law. No president has the authority to do what President Biden is trying to do here. He’s not a king.”

The amicus brief is in support of Kentucky’s multistate suit against the federal government in the U.S. Court of Appeals for the Sixth Circuit. The amicus brief argues that the challenged vaccination requirements improperly intrude on states’ traditional powers.

The filed amicus brief highlights the fact that President Biden’s executive order mandating vaccines for federal contractors represents an unauthorized exercise of regulatory power. The president’s authority in this case is limited to “prescribing policies and directives,”—he may not issue procurement regulations. In the executive order, President Biden unlawfully delegated authority to the director of the Office of Management and Budget and a White House Task Force, away from the entity created by Congress to establish such procurement regulations.

In addition, the brief argues that the president failed to show that the mandate promotes economy and efficiency. The brief states: “Neither the Executive Order nor any subsequent agency actions ‘identify any instance in which absenteeism attributable to COVID-19 among contractor employees resulted in delayed procurement or increased costs’…Moreover, a vague interest in preventing ‘absenteeism’ in federal contractors in and of itself is not sufficiently related to the government’s general procurement policies to justify such a ‘sweeping, invasive, and unprecedented public health requirement imposed unilaterally by President Biden.’”

Finally, the brief argues: “…the challenged actions seek to regulate public health, not improve the efficiency of contracting, rendering the actions blatantly pretextual.”

In addition to Attorney General Wilson, the attorneys general from the following states signed on to the amicus brief: Florida, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Dakota, Texas, Utah and West Virginia.

Michigan Attorney General Dana Nessel supports vaccine mandates

“I am not going to join a lawsuit attempting to stop the vaccine mandate from going into effect and I think it is irresponsible and reckless for the AGs who have,” Nessel said.

Democratic Attorney General Dana Nessel said Monday that while several GOP state attorneys general are putting their weight behind the fight against the mandate, she supports it and would sign on to a legal opinion to support it.

USSC Blocks Biden Vaccine Mandate

The Supreme Court on Thursday blocked President Joe Biden’s vaccine and testing requirement aimed at large businesses, but it allowed a vaccine mandate for certain health care workers to go into effect nationwide.

The decision is a huge hit to Biden’s attempts to use the power of the federal government to fight the Covid-19 pandemic. The President has emphasized the necessity of getting vaccinated against the virus for months and eventually decided to use the mandate on large employers as his main vehicle for convincing hesitant Americans to get their shots.

In freezing a lower court opinion that allowed the regulation to go into effect nationwide, the majority sent a clear message the Occupational Safety and Health Administration, charged with protecting workplace safety, overstepped its authority. In contrast, the justices said that a separate agency could issue a rule to protect the health and safety of Medicare and Medicaid patients.

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the unsigned opinion in the businesses case says.

Biden issued a statement praising the ruling on health care workers but criticized the ruling on businesses that will have the much wider effect.

“I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” Biden said.

Moving forward, Biden said “it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.”

This scanning electron microscope image shows SARS-CoV-2 (orange)—also known as 2019-nCoV, the virus that causes COVID-19—isolated from a patient in the U.S., emerging from the surface of cells (gray) cultured in the lab. Credit: NIAID-RML

Liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan issued a blistering dissent.

“When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions,” they wrote. “Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible.”

The rule would impact some 80 million individuals and requires employers with 100 or more employees to ensure that their employees are fully vaccinated or undergo regular testing and wear a face covering at work. There are exceptions for those with religious objections.

The agency said that it had the authority to act under an emergency temporary standard meant to protect employees if they are exposed to a “grave danger.”

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The Biden administration defended the regulation and argued that the nation is facing a pandemic “that is sickening and killing thousands of workers around the country” and that any delay in implementing the requirement to get a vaccine or submit to regular testing “will result in unnecessary illness, hospitalizations and death.”

During oral arguments, the Biden administration had asked that at the very least, if the court says employers can’t require the employees to get the vaccine, it should leave in place an alternate requirement for masking and frequent testing. The majority rejected that request Thursday.

Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said the ruling on the business mandate could have wide-reaching effects in future cases about the power of government.

“These cases were not referenda on vaccine mandates – which can still come from states, local governments, and private businesses – they were referenda on whether these kinds of expert policy decisions are better made by agency experts accountable to the President or by judges accountable to no one,” Vladeck said. “And if the answer is the latter, that’s going to be true long after, and in contexts far beyond, the immediate response to the Covid pandemic.”