170-Plus GOP Lawmakers to SCOTUS: OSHA Has No Authority to Impose Vaccine Mandate

More than 170 Republican Congressional leaders on Thursday submitted an amicus brief to the Supreme Court arguing that the Occupational Safety and Health Administration (OSHA) has no authority to impose a nationwide vaccine mandate on businesses with 100-plus employees.

“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 members contended. “In this case, the promulgation by [OSHA] of a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency.”

Reps. Rick W. Allen (R-GA), Elise Stefanik (R-NY), Virginia Foxx (R-NC), Jim Banks (R-IN), and Sen. Mike Braun (R-IN) led over 130 representatives and over 40 senators in filing the brief to the Supreme Court in the case set to be heard on January 7 considering the Biden Administration’s OSHA Emergency Temporary Standard (ETS).

In a statement to Breitbart News, Stefanik said the “unconstitutional vaccine mandate imposes government control into the private, medical lives of millions of American citizens.”

Rep. Elise Stefanik, R-N.Y., speaks to reporters at the Capitol in Washington, Friday, May 14, 2021. (AP Photo/J. Scott Applewhite)

“This mandate hurts our nation’s workers, employers, and small businesses and will now rightfully be challenged in the highest court in the land. I am proud to lead my colleagues in standing up for the rule of law against the Biden Administration’s unconstitutional vaccine mandate on private workplaces,” the congresswoman said.

In mid-December, the Sixth Circuit dissolved a stay of Biden’s vaccine mandate issued by the Fifth Circuit in November. Though the Sixth Circuit has a conservative judge majority 9-7, a three-judge panel, including a President Barack Obama appointee and a President George W. Bush appointee with a reputation as a liberal-leaning moderate, voted 2-1, with a President Donald Trump appointee penning the dissent.

In response to the federal appeals court decision, numerous business groups, organizations, and even 27 states filed emergency requests asking the U.S. Supreme Court to resolve the split between federal appeals courts on the legality of President Joe Biden’s vaccine mandate for businesses with 100-plus employees. The applicants are asking the justices for a stay while litigation is ongoing, challenging Biden’s coronavirus vaccine mandate. The 27 states and several other applicants additionally requested for their filings to be considered a petition for writ of certiorari, meaning they asked asking the Supreme Court to take up the case this term.

Supreme Court Justice Brett Kavanaugh considered the request and asked the federal government to respond to each of the applications by December 30 at 4:00 p.m., signaling that the Court would be moving forward with the case.

Brett Kavanaugh (AFP/File MICHAEL REYNOLDS)

Obama appointee Judge Jane Stranch said she decided to dissolve the stay because she thinks the mandate is necessary to stop the transmission of the virus. She did not comment on the fact that vaccinated people, according to the Centers for Disease Control and Prevention (CDC), are also able to transmit the virus.

“Recognizing that the ‘old normal’ is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there,” she wrote. “In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration.”

In their amicus brief to the Supreme Court, GOP lawmakers argued against Stranch’s point, noting that “mandatory vaccinations do not stop individuals from contracting and transmitting COVID-19.”

The brief continues: 

 Vaccinated workers can still contract and transmit COVID-19, including the new Omicron variant. Given that fact, imposing masking and testing restrictions only on unvaccinated workers makes no sense because all workers regardless of vaccination status remain potential carriers and transmitters of the virus. If the Rule does not cure the supposed grave danger in the workplace, it cannot be necessary under the statute. Thus the ETS Mandate cannot rise to the level of “necessary” required by the text of the OSH Act

GOP lawmakers also rebutted Judge Julia Gibbons’ concurring opinion that OSHA had “likely” acted “within the bound of its statutory authority.” Instead, congressional members contend the legislative branch did not provide OSHA with the authority the agency is claiming to enact such a broad sweeping mandate. 

“The separation of powers has long been known to be a defense against tyranny. And so it “remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another,”’ the brief states. “Those safeguards are just as relevant today.”

Out of Biden’s five federal coronavirus vaccine mandates, the mandate for businesses with 100-plus employees is the largest and impacts 84 million workers. Biden’s Centers for Medicare & Medicaid Services (CMS) mandate for healthcare workers covers approximately 10.4 million people with an additional 2.7 million individuals who will be covered once hired. The Supreme Court will also hear arguments regarding Biden’s CMS mandate on January 7. 

The applications are NFIB v. OSHA, No. 21A244, and Ohio v. Dep’t of Labor, No. 21A247 in the Supreme Court of the United States.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on Twitter.

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