GOP threats to Biden's vaccine mandates unlikely to succeed, experts say

GOP threats to Biden's vaccine mandates unlikely to succeed, experts say

September 11, 2021

Nearly two dozen Republican governors, as well as the GOP itself, have vowed to file lawsuits or take other actions to block President Joe Biden’s newly announced vaccination mandates — but legal experts say they’ll have a hard time successfully making their case in court.

Biden on Thursday issued two executive orders mandating vaccines for federal workers and contractors and also announced new requirements for large employers and health care providers that he said would affect around 100 million workers, more than two-thirds of the U.S. workforce. Following the announcement, Republicans across the country slammed the moves.

South Dakota Gov. Kristie Noem tweeted that her state would “Stand up to defend freedom,” adding, “@Joe Biden see you in court.”

Georgia Gov. Brian Kemp tweeted he would “pursue every legal option available” to stop "this blatantly unlawful overreach,” while Arizona Gov. Doug Ducey tweeted that the White House was “hammering down on private businesses and individual freedoms in an unprecedented and dangerous way” and that “we must and will push back.”

South Carolina Gov. Henry McMaster said in a statement that “Biden and the radical Democrats (have) thumbed their noses at the Constitution” and Oklahoma Gov. Kevin Stitt said, “as long as I am governor, there will be no government vaccine mandates in Oklahoma.” Texas Gov. Greg Abbott tweeted he’s already “working to halt this power grab.”

Republican National Committee Chairwoman Ronna McDaniel called Biden’s move “unconstitutional” and said the RNC will sue the administration.

Legal experts, however, said those lawsuits are most likely — but not certain — to fail, due to wide-ranging powers that the Constitution and decades of administrative law precedent have established.

Biden on Friday appeared to be spoiling for that fight, telling Republican governors to “have at it” and slamming Republican officials as being “cavalier with the health of their communities” when asked about criticism of the new vaccine requirements.

Generally speaking, public health powers are delegated to the states, experts said. But the Constitution also gives the federal government broad powers to regulate certain matters when it perceives that states and localities are not able to do so, or are doing so inadequately.

In this case, experts explained, Biden’s mandates pass muster because he is filtering them through the lenses of workplace safety and through the Constitutional language of federal spending powers.

“President Biden is acting within the authority of the executive branch to impose rules and regulations — sometimes referred to as the regulatory state — and within the rule-making authority associated with a range of federal administrative agencies,” said Juliet Sorensen, a professor at Northwestern University’s Pritzker School of Law and an expert on health and human rights laws.

Biden’s orders will largely be enforced by the Department of Labor, which includes the Occupational Safety and Hazard Administration, an arm of the executive branch with the authority to implement and oversee the orders, Sorensen said. OSHA's mission is to ensure safe workplace conditions around the country and therefore naturally extends to keeping workers safe from Covid, she added.

"The gravity of the pandemic and the fact that it’s persisted without these mandates in place puts the president on solid ground, legally," she said.

The president also has the power to regulate spending power, which is relevant to Biden’s mandate requiring employees working in health care facilities that receive Medicare or Medicaid reimbursement to be vaccinated, according to Sylvia A. Law, a professor emeritus at New York University’s School of Law.

Through the Constitution, Congress has the explicit power to attach conditions to whatever money it’s disbursing — including the hundreds of billions it spends each year on Medicare and Medicaid. But the president and the executive branch have the constitutional power to dictate various elements of federal spending, especially when it comes to health care.

“Most of what exists in this space has pretty much been made up by the agencies and upheld in some cases, by the courts. We understand that the Congress paints in broad strokes and, simply put, much of the rest of it gets filled in by rules, regulations and court rulings,” Law said.

“Under current law, it’s clear that Biden has the power to do what he’s done,” she said.

But, as is the case with most legal arguments, the administration’s case for mandates won’t be impeccable, Law warned.

“A smart lawyer who doesn’t agree with vaccine mandates will be able to make a ‘pass-the-laugh-test' argument that it’s not legal, and with the makeup of this current Supreme Court, it’s hard to know how that would shake out,” Law said.

Law said that some individuals may be able to claim exemptions based on religious or health grounds, but those concerns are unlikely to topple the mandates more broadly.

Sorensen said the strongest area to challenge the mandates for Republican officials and operatives lies in how the mandates would be enforced.

“If I’m a Republican governor, I’m looking closely at that language,” she said.

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