Comparing the vaccine-or-test mandate to the Biden administration’s eviction moratorium, business groups suing over the vaccine rule pointed to the Supreme Court’s decision in August to knock down the eviction ban. Then, the high court found in the case of the eviction moratorium, that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends” and that Congress must specifically authorize such policies.
“Just a few months ago, the Supreme Court explained that the Centers for Disease Control and Prevention (CDC) could not unilaterally grant itself control of the nation’s housing market,” the business groups wrote in a Tuesday court filing. “Sweeping authority must come, if at all, from Congress.”
The emergency rules released by the Department of Labor last week require private businesses with more than 100 employees to ensure their workers are vaccinated or have them submit to weekly testing by Jan. 4.
The Biden administration said in a court filing Monday that the mandate was well within OSHA’s authority and that a permanent stay “would likely cost dozens or even hundreds of lives per day.”
Attorneys for OSHA and the Labor Department told a panel of judges for the New Orleans-based Fifth Circuit Monday that the legal argument lodged by states and businesses conflicts with earlier court rulings and federal law, and is unlikely to succeed.
They also said businesses and states challenging the rule don’t have the grounds for “emergency” relief because the effects of the mandate won’t be in place for another month.
But businesses challenging the rule in the Fifth Circuit say the administration is trying to have it both ways.
“It cannot proclaim this an ‘emergency’ and a ‘grave danger’ which must be met with immediate action that skips notice-and-comment rulemaking but insist that there is plenty of time for the courts to address this matter on the usual routine schedule without expedited consideration,” a coalition of businesses argued in Tuesday’s court filing.
Three entities challenging the rule, Burnett Specialists; Choice Staffing, LLC; and Staff Force, Inc.; argued in a separate filing that absent a stay, businesses may start to implement the mandates before the issue is resolved in court.
Individuals are considered fully vaccinated two weeks after their second dose of Pfizer or Moderna, or a single shot of Johnson and Johnson, according to the CDC, meaning that workers will need to start getting vaccinated roughly around the first week of December.
“A vaccine requirement covering more than 80 million Americans is an awesome and unprecedented claim of authority,” the businesses challenging the rule wrote in their court filing. “Yet the ongoing administration approach is to press ahead with constitutionally dubious assertions of power, and legal arguments, knowing that they will have achieved their legal objective by the time the matter winds through the court system, regardless of the ultimate legal outcome.”
Those businesses also argued that OSHA exceeded its authority because the Constitution does not grant “the general police power, including public health authority,” to the federal government.