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Wednesday, August 10th, 2022
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The Biden administration’s vax-or-test mandate is a violation of the constitution’s separation of powers protections. So say 46 U.S. senators in a brief filed with the U.S. Supreme Court as the high court this week prepares to take up emergency requests to block the mandate.

The Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard, requiring private employers with more than 100 workers to force employees to get the COVID-19 shot or weekly test, was issued without congressional approval and therefore unconstitutional, according to the amicus brief filed by U.S. Sen. Ron Johnson (R-Oshkosh) and 45 other Republican senators.

“Congressional members have an interest in the powers they delegate to agencies not being abused—the legislative authority vested in the federal government belongs to Congress, not the Executive branch,” the brief states.

The mandate could go into effect as soon as Monday.

In many ways, the senators’ arguments are similar to those of Wisconsin’s Republican-controlled Legislature in challenges to the statewide lockdowns and mask mandates issued by the Evers administration. The Wisconsin Supreme Court ultimately ruled Gov. Tony Evers’ health czar violated state law, and the separation of powers, by unilaterally issuing health orders before going through the legislative rule-making process.

“In this case, the promulgation by the Occupational Health and Safety Administration of a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency,” the senators wrote. “And it does so with a Mandate enacted through OSHA’s seldom-used ‘emergency temporary standard’ provision that allows for bypass of notice and comment rulemaking under certain circumstances. That OSHA exceeded its authority in enacting the ETS Mandate is not a ‘particularly hard’ question.”

The “friend of the court” brief supports a lawsuit filed by 26 industry associations challenging the Biden administration mandate and urges the Supreme Court to stay it.

Former Vice President Mike Pence’s political advocacy group — Advancing American Freedom  — has also weighed in, asking the high court to block the mandate.  The brief, first reported by The Hill,  was a response to the 6th U.S. Circuit Court of Appeals ruling a week before Christmas that reinstated the OSHA standard. In November, the U.S. appellate court in New Orleans temporarily blocked the federal government from enforcing the mandate.

Pence’s organization agrees that OSHA’s standard “entirely ignores” the boundaries and limitations imposed by the framers of the constitution.

“This court must act now to prevent the irreparable harm to Americans, to jobs, and to constitutional governance that will be done if OSHA’s mandate is permitted to take effect,” the Pence brief argues.

Biden’s Justice Department insists the 1970 law that created OSHA clearly gives the government agency the authority to impose such emergency standards.

But the interests of federalism trump a federal agency’s expanded power to dramatically impact businesses and the lives of more than 80 million people, the U.S. senators assert.

“Federalism concerns should be addressed before requiring federally-imposed solutions,” they wrote in their brief. “And this is especially true when the question at issue involves an area typically reserved to the States (such as vaccine mandates). At the least, Congress should be forced to make clear any delegations of authority into areas of State control.”

The U.S. Supreme Court is scheduled to hold a hearing this Friday on the vax-or-test mandate.

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