Missouri Attorney General Eric Schmitt followed through on his months-long promise to sue over President Joe Biden’s plan to require COVID-19 vaccination or testing at larger businesses.
And the Republican believes that the GOP attorneys general who signed on to the suit will succeed in proving that the Occupational Safety and Health Administration rule went beyond what the federal government is allowed to do.
“Broadly speaking, it’s an unconstitutional, unlawful, unwise, unprecedented, breathtaking federal overreach,” said Schmitt in an interview with St. Louis Public Radio on Friday. “There’s no authority anywhere in the constitution or any federal statute that gives the Biden administration the authority to force the vaccination of tens of millions of Americans. There just isn't’.”
Biden announced in September he was requiring businesses with 100 employees or more to require vaccination or weekly testing. Failure to adhere to these rules could result in fines. The plan released earlier this week states that employees must either be vaccinated or tested periodically by early January.
Schmitt and 10 other attorneys general filed a lawsuit on Friday in a federal court based in Missouri. Among other things, the lawsuit states the “federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment.”
“OSHA also lacks statutory authority to issue this mandate, which it shoe-horned into statutes that govern workplace safety, and which were never intended to federalize public-health policy,” the lawsuit states.
OSHA is authorized to issue rules in response to “grave dangers” in the workplace. And a court may uphold the vaccine or testing mandate if the federal government can prove the rule mitigates or eliminates that grave danger.
Rob Gatter, a professor at St. Louis University Law School’s Center for Health Law Studies, said earlier this year: “There’s really no doubt that people are in grave danger as a result of this pandemic, and in particular the delta variant.”
Schmitt said if the federal government had statutory or constitutional authority, the “grave danger” point may stand. “But they don’t,” he said.
“So that argument is kind of cut off at the knees, because there just isn’t any authority for it,” Schmitt said. “This is not something the federal government does. It’s not something that they have the ability to do. Joe Biden may want this to be the case. But thankfully, we still live in a country of laws. And our system of checks and balances was designed to spread out power.”
The Biden plan sparked a flurry of activity from the governor’s office and state legislators. Gov. Mike Parson issued an executive order that bars executive branch agencies from compelling people to get the vaccine if they object for medical or religious reasons. And some lawmakers have wanted a special session to pass bills aimed at counteracting the Biden plan, which may be largely symbolic since Missouri statutes would likely not have an impact on a federal agency like OSHA.
But even proponents of the Biden plan, such as state Rep. Ian Mackey expected that litigation, and not legislation, would be the way to see if the Biden proposal is legal.
“It would certainly be more effective,” said Mackey, D-Richmond Heights, on a recent episode of Politically Speaking. “The courts are better suited to address the state government’s disagreement with the federal government than us in Jefferson City on the House floor passing a resolution.”
Biden and other supporters of the OSHA vaccination or testing rule have contended it would cut down on the number of deadly cases of COVID-19.
“This is good for the workers, for their colleagues, for their loved ones, and for their communities,” Biden said in remarks on Friday. “And it’s also good for the economy.”
But Schmitt said the OSHA rule sets a dangerous precedent in terms of federal authority.
“This debate is about how much power we want to cede to the government,” Schmitt said. “Is it where you can go? What do you put on your face? What do you put in your body? That’s a lot of authority to give to the federal government.”
Schmitt said that GOP attorneys general from around the country filed lawsuits in various federal circuit courts in the hopes of getting a quick decision on whether the rule is legal.
Follow Jason on Twitter: @jrosenbaum
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