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In September 2021, an article reported the following.

My job as president is to protect all Americans," Mr. Biden said Thursday. "So tonight, I'm announcing that the Department of Labor is developing an emergency rule to require all employers with 100 or more employees that together employ over 80 million workers to ensure their workforces are fully vaccinated or show a negative test at least once a week." reference link / source

Governors intend to challenge said requirement.

24 states threaten legal action over Biden's vaccine mandate

What is the 'hurdle' they would need to 'jump' in order to successfully challenge? Unconstitutional (which amendment?)? Would state law barriers be excluded from the challenge?

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  • I'm not an expert, but any time a state governor is talking about "federal overreach" they usually mean the Tenth Amendment. Sep 11, 2021 at 12:24
  • With the rule boiling down to mandating only one negative test per week it might be challenged as being ineffective. Sep 11, 2021 at 16:39
  • From the Washington Post, Oct 31, 2021: Attorneys general in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota and Wyoming [10 states] sued Biden and other federal officials Friday, arguing a mandate encompassing one-fifth of U.S. workers infringes on states’ powers and is unconstitutional. Oct 31, 2021 at 17:53

3 Answers 3

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President Biden's most far-reaching mandates use four mechanisms: Federal employees must be vaccinated, contractors to the Federal government must impose mandates on their employees, businesses with more than 100 employees must impose mandates under an order (not yet written) from the Occupational Health and Safety Administration to insure workplace safety, and employers who accept Medicare and Medicaid payments (both from the Federal agency, CMS) must impose mandates on their employees.

Note that none of the mandates apply to state governments/ There may be a possible exception of state agencies that have Federal contracts, eg, universities, health departments, transportation departments, and others.

These mandates are not universal, they are limited in specific ways and appear to adhere to and fulfil Federal laws. Three of these mandates are imposed on Federal employees and contractors with the federal government. Not much there for a state to hang a lawsuit on. States can't interfere with Federal employment practices or contractor policies. Worker safety is a well-established Federal responsibility with laws tested in court. Not much opportunity for a state to interfere there, either.

So no, there doesn't seem any way for a state governor or attorney general to do anything but bluster for their constituency. But still, give them a chance to show up in court and see if their claims pass the laugh test. Then we can all have a good laugh.

Added Sept 15, 2021

There might be some room for some employers to dispute the mandate in court, based at least partly on the notion that spreading a virus is different from toxic chemicals. Any OSHA mandate is likely to allow the alternative of wearing a mask and getting regular, frequent testing, to maintain the safety of all workers. There is likely to be litigation but there is no logical reason for a state to be involved.

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  • Put another way, the states lack standing.
    – ohwilleke
    Sep 16, 2021 at 0:53
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Biden cannot write legislation, he can only enforce legislation previously enacted by Congress. Therefore, his primary challenge is finding a legal path that enables his branch of government to write a rule. The governors, in response to such a rule, would then have a specific target to aim their legal arguments at.

During the Trump administration, there were numerous executive orders telling executive branches to develop regulations doing something, and various legal challenges to those orders, some successful, some not. Broadly speaking, the courts follow certain principles in determining whether the rule is "legal" or not. For example, a rule might flagrantly conflict with the First Amendment in favoring one religion. A rule might contradict clearly established interpretations of an enabling statute. But there is a doctrine of "Chevron deference", that defers to the interpretation of an agency if the interpretation is permissible and Congress has not directly addressed the issue (Congress has not directly addressed the issue of mandating vaccines).

Commerce clause powers are very widely invoked to justify federal laws, since it's hard to come up with something that doesn't "affect interstate commerce" (even purely in-state commerce does because that affects whether out of state supplies can "compete").

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  • What about the exclusion of Congress and those who work for Congress or the federal court system from the mandate? Was that to prevent a particular challenge to the rule?
    – ColleenV
    Sep 15, 2021 at 15:42
  • Even if the rules were invalid, it isn't obvious that a state government would have standing to challenge it.
    – ohwilleke
    Sep 16, 2021 at 0:54
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The governors would need to live in a different country with a different constitution

In Jacobson v. Massachusetts, 197 U.S. 11, the Supreme Court, in 1905, ruled:

The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.

It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.

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    Jacobson v. MA was about state-level mandates, though. I think there's a reasonable question (10th Amendment & Commerce Clause & all that) about whether the federal government has the power to impose such a mandate. Sep 11, 2021 at 12:42
  • @downvoters: please make a comment such that I can understand the reason why you downvoted. IANAL
    – gatorback
    Sep 11, 2021 at 23:38
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    @gatorback: I didn't downvote, but I suspect that the issue raised in my comment has something to do with it. Sep 14, 2021 at 13:48
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    Not my vote either, but the power to enact any Federal law is a power of Congress&Senate, not the President.
    – MSalters
    Sep 16, 2021 at 13:46

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