Republican governors, lawmakers and pundits blasted Biden’s plan, unveiled Thursday, as a major governmental overreach and threatened lawsuits to block enforcement. Biden has called for making vaccines or regular testing mandatory in most workplaces and signed an executive order requiring all executive branch employees and contractors to be vaccinated, with no exception for those preferring testing.
“Joe Biden told Americans when he was elected that he would not impose vaccine mandates. He lied,” said Republican National Committee (RNC) Chairwoman Ronna McDaniel. She said that the RNC will sue the administration on behalf of “small businesses and workers [who] do not have the money or legal resources to fight Biden’s unconstitutional actions and authoritarian decrees.”
It is far from clear that Biden’s mandates are unconstitutional or illegal. Experts say they will likely survive a court challenge. But they certainly represent a change of position for a White House that has, to this point, been careful about seeming to attack or strong-arm unvaccinated individuals.
New tone from Biden
In a departure from his past remarks on the virus, Biden addressed the unvaccinated directly, accusing them of endangering themselves and others.
“We’ve been patient, but our patience is wearing thin,” Biden said in his White House speech. “And your refusal has cost all of us.”
“A distinct minority of Americans, supported by a distinct minority of elected officials, are keeping us from turning the corner,” Biden added. “These pandemic politics are making people sick, causing unvaccinated people to die.”
The U.S. is averaging about 150,000 new coronavirus cases a day, thanks largely to the surge in the delta variant. About 1,500 deaths are being reported daily, or more than at any point since March. The majority of the dead were not vaccinated.
Among the new policies Biden announced is a requirement that all federal employees and contractors that do business with the government, with a few exceptions, be vaccinated against the virus. An earlier position, that allowed the non-vaccinated to continue working if they tested frequently and wore masks, has been scrapped. Now, those who fail to comply risk being fired. The new rule will affect more than 4 million employees of the executive branch and the armed forces, plus millions more contractors.
Another new rule is that all employers with more than 100 employees require that their workers either be vaccinated or take weekly COVID-19 tests. The rule, which would be enforced by the Occupational Safety and Health Administration, would affect about 80 million Americans.
In addition, the administration said it would require all workers at any hospitals that accept Medicare or Medicaid payments to be vaccinated, covering another 17 million people. The administration will also require all businesses to give employees paid time off for vaccinations, and is calling on large entertainment venues to require proof of vaccination for entry.
In sum, more than 100 million American workers, or about two-thirds of the workforce, will be subject to the mandates, though a large percentage are already vaccinated. The U.S. Centers for Disease Control calculates that just more than 75% of U.S. adults have received at least one shot.
Republicans blast Biden
“Biden’s vaccine mandate is an assault on private businesses,” said Republican Texas Gov. Greg Abbott on Twitter. “I issued an Executive Order protecting Texans’ right to choose whether they get the COVID vaccine & added it to the special session agenda. Texas is already working to halt this power grab.”
“The Biden administration’s recent announcement seeking to dictate personal freedom and private business decisions is an insult to our American principles of individual liberty and free enterprise,” said Republican Missouri Gov. Mike Parsons. “This heavy-handed action by the federal government is unwelcome in our state and has potentially dangerous consequences for working families.”
“Vaccination protects us from serious illness, but the decision to get vaccinated is a private health care decision that should remain as such,” he said. “My administration will always fight back against federal power grabs and government overreach that threatens to limit our freedoms.”
Reaction to Biden’s announcement was far more positive among Democratic governors.
“Vaccines are the best way for us to get through this pandemic,” tweeted Virginia Gov. Ralph Northam in response to a presidential tweet announcing the mandate. “That’s why we have required vaccinations for over 120,000 state employees—and it’s making our Commonwealth safer.”
Several Republicans promised a legal challenge to the administration’s vaccine mandate.
“I will pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration,” said Georgia Gov. Brian Kemp.
‘See you in court’
Republican Gov. Mark Gordon of Wyoming said, “I have asked the Attorney General to stand prepared to take all actions to oppose this administration’s unconstitutional overreach of executive power. It has no place in America. Not now, and not ever.”
South Dakota Gov. Kristie Noem tweeted directly to the president, saying, “See you in court.”
Despite the confident assertions of the mandate’s unconstitutionality by Republican politicians, experts say that lawsuits to block enforcement are likely to fail, with many pointing to a 1905 ruling by the Supreme Court that said states are allowed to mandate vaccines.
Other suits unsuccessful
Two challenges to other vaccine mandates have both failed in federal court in recent months. One was brought by former employees of Houston Methodist Hospital who lost their jobs for failing to comply, and another by students at Indiana University protesting the school’s vaccine requirement. The plaintiffs in the Indiana case appealed to the Supreme Court, but conservative Justice Amy Coney Barrett declined to refer the matter to the full court.
“OSHA has fairly broad authority delegated to it to ensure worker safety,” said Brian Dean Abramson, an adjunct professor of vaccine law at Florida International University and the author of the BloombergLaw/American Health Law Association treatise Vaccine, Vaccination, and Immunization Law.
“The broad strokes of what has been presented — that employers with over 100 employees require employees be vaccinated or have some other measures in place to prevent the spread of infection or face an OSHA fine — I think that is likely to ultimately be upheld,” Abramson said.
Further, he said that given the reluctance of courts to even temporarily enjoin enforcement of mandates in the Houston Methodist and Indiana University, the lawsuits are unlikely even to slow the rollout of an OSHA vaccine mandate.
“My gut instinct is that this will not be put on hold,” Anderson said.