Three Arizona members of Congress are joining in on a lawsuit against the Biden administration over its COVID-19 vaccine mandate for businesses with 100 or more employees. Reps. Paul Gosar (R-AZ-04), Andy Biggs (R-AZ-05), and Debbie Lesko (R-AZ-08) along with 180 other members of the U.S. House of Representatives and U.S. Senate filed an amicus curiae brief in NFIB v. OSHA challenging the authority of the Occupational Safety and Health Administration (OSHA) to implement the mandate.
The members of Congress argued that the mandate violates federalism, encroaching on the states’ authority. “[T]he sudden ‘discovery’ of authority under the OSH Act confirms that it was never intended to displace state authority in this area.” They assert, “Congress did not give that power to an agency bureaucrat.”
The members cite the Constitution and previous Supreme Court cases, warning, “The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the documents that they drafted in Philadelphia in the summer of 1787.”
The brief is very clear, “Vaccine mandates — a prototypical state police power — are not within the purview of the OSH Act, let alone something on which Congress intended OSHA to take unilateral action under its ‘emergency’ powers.” The OSH Act “covers only workplace-specific hazards.”
The brief explains that OSHA was only given the power to address “grave danger” in the workplace, not “to branch out into public healthcare policy” and “become a roving public health agency.” Additionally, they point out that the rule doesn’t fix the supposed grave danger because COVID-19 is also spread among the vaccinated.
Sarcastically, they provide an analogy, “Employees might also have better outcomes with the disease if they exercised at night, took vitamins at home in the morning, and avoided large gatherings on weekends. Yet no one would argue that OSHA’s jurisdiction extends beyond the workplace to these activities.”
The Fifth Circuit Court of Appeals put a stay on the mandate on November 6, but the Sixth Circuit Court of Appeals lifted it on December 17. The Department of Labor will begin enforcing the mandate on January 10. The U.S. Supreme Court will hear oral arguments on Friday regarding whether to issue an emergency stay while the lower courts decide the merits of the case. Under the OSHA rules, employers can choose to offer weekly testing for workers instead.
There is a bipartisan effort in the U.S. Senate to block enforcement of the mandate, but it reportedly has little chance of passing in the House.
All three members of the Arizona Congressional delegation who signed the brief have actively opposed the vaccine mandates. Gosar introduced a resolution to terminate vaccine mandates and demanded answers regarding underreporting of COVID-19 vaccine data.
Biggs demanded answers from HHS and the FDA on Pfizer’s vaccine data and introduced a bill to abolish OSHA. Lesko introduced a bill to block federal vaccine databases and another one to prohibit federal funding of mandatory vaccinations.
Arizona Attorney General Mark Brnovich has filed multiple lawsuits against the Biden administration over its vaccine mandates, which were also imposed on the military and federal contractors. Over half the states have filed lawsuits over the employer vaccine mandate.
Other plaintiffs include the National Retail Federation, the National Federation of Independent Business, the American Trucking Associations, the Republican National Committee, The Daily Wire, Bishop O’Gorman Catholic Schools, the Christian Employers Alliance, the Home School Legal Defense Association, and the Texas Public Policy Foundation.
A legal analysis by the Heritage Foundation predicted that the Supreme Court will strike down the mandate. The paper concluded, “The legal problem the Administration faces is that the OSH Act does not grant the Labor Secretary that authority.”
Authors Paul Larkin and Doug Badger also noted, “The political problem that the President faces is that he does not want to ask Congress to adopt the first-ever general federal vaccination requirement.”
— Rep Andy Biggs (@RepAndyBiggsAZ) January 5, 2022
I am proud to join my Republican colleagues in an Amicus Brief to the U.S. Supreme Court arguing Biden’s vaccine mandate on private businesses is unconstitutional. I will always fight against vaccine mandates!https://t.co/TfOtF3lB2N
— Congresswoman Debbie Lesko (@RepDLesko) January 6, 2022
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