What barriers are there for states to challenge the announced federal mandate for large employers to vaccinate their staff?

Question

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?

Answer 1

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.

Answer 2

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").

Answer 3

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.