‘Unconstitutional, unlawful, and unwise’: 11 states sue Biden administration over business vaccine mandate

States claim that the power to compel vaccinations lies with them and not federal government

The day after the Biden administration announced a Covid-19 vaccine mandate would come into effect on 4 January for private companies with more than 100 employees, 11 states have filed suit challenging the new rules.

In a lawsuit filed in St Louis, Missouri-based 8th US Circuit Court of Appeals, attorneys general for the states argue that the power to compel vaccinations is not that of the federal government, but rests in state capitals.

Leading the suit is Missouri Attorney General Eric Schmitt, who said: “This mandate is unconstitutional, unlawful, and unwise.”

The other states who joined the suit are Alaska, Arizona, Arkansas, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

Also joining the suit was the office of Iowa Attorney General Tom Miller, a Democrat, along with several private, nonprofit, and religious employers.

The new regulations were published in the Federal Register on Thursday by the Labor Department’s Occupational Safety and Health Administration.

They mandate that companies with more than 100 employees require their workers to be vaccinated against Covid-19 or be tested for the virus weekly and wear masks on the job.

Full compliance is required by 4 January, with penalties of $14,000 per violation rising to $136,000 for any employer who deliberately disregards the mandate.

The new rules will cover up to 84 million Americans and will be enforced by inspections to check for compliance. They preempt any state or local laws that would ban such mandates or other protective measures.

Mr Schmitt, one of several Republicans vying for the state’s open US Senate seat in 2022 when Senator Roy Blunt will not seek reelection, says that he is suing to “protect personal freedoms, preserve Missouri businesses, and push back on bureaucratic tyrants who simply want power and control”.

Missouri has 3,443 private firms which would be covered by the vaccine mandate — a total of 1.3 million employees.

Mr Schmitt has a history of legal action against measures to curb the spread of Covid-19 and prevent the needless hospitalisation or deaths of Americans.

KCRG reports that last week he joined eighteen other states in a suit to stop the administration’s rule requiring federal contractors to be vaccinated. In August, he filed suit against a school district over its mask mandate.

In September, a judge denied Mr Schmitt’s request for an injunction against Columbia Public Schools to stop its mask mandate, arguing that mask requirements for kids “are not supported by the science and are an arbitrary and capricious measure”. That same month, he sued Jackson County over its mask mandate. In June, he filed suit against St. Louis County over its mandate. In April, he sued the government of China for a variety of offences related to the origin of the virus.

The federal government feels that it is legally on solid ground in the case of the vaccine mandate. OSHA has the authority to act quickly in an emergency where it believes workers are in grave danger and new regulations or standards are required to protect them.

“A virus that has killed more than 745,000 Americans, with more than 70,000 new cases per day currently, is clearly a health hazard that poses a grave danger to workers,” an official said. “The new emergency temporary standard is well within OSHA’s authority under the law and consistent with OSHA’s requirements to protect workers from health and safety hazards, including infectious diseases.”

In addition to the private business mandate, approximately 17 million healthcare workers at facilities participating in Medicare and Medicaid programmes will also be covered by similar rules announced by the Centers for Medicare and Medicaid Services, which also go into effect on 4 January.

Federal contractors were required to get vaccinated by 8 December, but that has now been pushed in line with the 4 January deadline.

“Together, these rules will cover about 100 million Americans – two-thirds of all workers in America,” President Joe Biden said in a statement released by the White House on Thursday. “As we’ve seen with businesses – large and small – across all sectors of our economy, the overwhelming majority of Americans choose to get vaccinated. There have been no ‘mass firings’ and worker shortages because of vaccination requirements. Despite what some predicted and falsely assert, vaccination requirements have broad public support.”

Mr Biden added: “I’m calling on employers to act. Businesses have more power than ever before to accelerate our path out of this pandemic, save lives, and protect our economic recovery.”

The states are not the only source of lawsuits against the new mandate. Conservative media company The Daily Wire filed a challenge in federal court on Thursday, as did companies in Michigan and Ohio represented by a conservative advocacy law firm, and two Wisconsin manufacturers represented by a conservative law firm.

With reporting from the Associated Press