Joining the 50 Republicans in the Senate, Democrat Senators Joe Manchin, D-W.V., and Jon Tester, D-Mont. blocked President Biden’s vaccine mandate. This comes after the U.S. Court of Appeals for the Fifth Circuit first found “grave statutory and constitutional” issues with the mandate.
Senate Blocks Biden Vaccine Mandate on Businesses
Under Biden’s proposed mandate, companies with 100 employees or more had to require their workers to get vaccinated, get tested, and even face the prospect of losing their job.
The Senate vote on Wednesday (08-12-21) blocked Biden’s vaccine mandate to force private employers to the rule. Using the Congressional Review Act Republicans were able to bring the measure to a vote. Under this Act, they only needed a simple majority vote in the House and Senate. And if it passes the House, it will go to the President where the administration has threatened a veto.
Overall, this exercise is a moot point as the courts have already ruled on the vaccination and testing mandate. The vote will nevertheless give those opposing the mandate another avenue to pursue if higher courts overturn previous rulings. But with more states fighting the mandate, the courts is where this will be decided if the administration doesn’t give up first.
Judges Citing Federal Overreach With More Blocks
The ruling against the mandates is increasing as judges cite federal overreach by the current administration.
A federal judge in Georgia has blocked the vaccine requirement for federal contractors nationwide. Without the block, they would have had to get vaccinated by January 18. And this also comes as a federal ruling in Missouri blocked a vaccine mandate for health care workers in 10 states.
The sweeping ruling by Louisiana U.S. District Judge Terry Doughty blocked vaccine mandates from being administered nationwide. Reminding everyone of the Tenth Amendment Doughty eloquently wrote in his ruling:
“If the executive branch is allowed to usurp the power of the legislative branch to make laws, two of the three powers conferred by our Constitution would be in the same hands. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”
To drive the point further, Doughty added, “During a pandemic such as this one it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties.”
The injunction, in this case, covers 40 of the 50 states, with the remaining 10 states already covered under a preliminary injunction issued by the Eastern District of Missouri.
The OSHA COVID-19 Vaccination and Testing ETS
The emergency temporary standard (ETS) on vaccination and testing was published in the Federal Register on November 5, 2021, as part of the comment period for the mandate. This was a proposal for a permanent standard.
When the litigation against the mandate was brought on, OSHA then published the following update.
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”).
The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over ETS challenges and DOL has filed a motion to lift the stay. While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. Note that the comment period is separate from the litigation.
Had this ruling not taken place, OSHA could have enforced fines of up to $13,653 per violation if the violation was serious enough. If that wasn’t obscene enough, the amount could go up to 10 times if the violation was repeated or deemed willful.
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