Pence group files amicus brief with Supreme Court opposing Biden’s ‘unconstitutional’ vaccine mandate

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Former Vice President Mike Pence is taking on President Joe Biden over his administration requiring large businesses to mandate the COVID-19 vaccine for its workers or force frequent testing for those who do not comply.

On Monday, Pence announced his political advocacy group, Advancing American Freedom, has filed an amicus brief urging the Supreme Court to reject the administration’s vaccine mandate, arguing that it’s unconstitutional and would exceed previous examples of the Occupational Safety and Health Administration’s use of emergency authority, The Hill reported. The court is expected to hear challenges to Biden’s mandate this week.

“America is about freedom and the ability to make the best decision for your family or business, and Joe Biden’s vaccine mandate must be stopped in its tracks in order to preserve freedom, protect American livelihoods and businesses, and to safeguard our constitution,” Pence said in a statement. “Joe Biden’s vaccine mandate is not the American way, and Advancing American Freedom will always stand up to unconstitutional overreach from the Executive Branch that infringes on the freedoms we so greatly cherish.”

More from The Hill:

The brief outlines nine previous cases where OSHA used an emergency temporary standard to expedite the standard rule-making process. Pence’s brief argued there is a distinction in that the previous instances sought to regulate workplace dangers like asbestos or other chemicals that threatened workers’ safety, not require employees to get vaccinated or get some other medical treatment.

The brief from Pence’s group argues that the OSHA rule requiring vaccinations suggests “the Biden Administration is not truly seeking to mitigate workplace hazards through the [emergency temporary standard], but rather is attempting to use OSHA to accomplish an end that it has been unable to persuade Congress to support: the mandatory vaccination of the American public.”


“All of the nine previous ETSs sought to regulate an asserted occupational danger or toxin that arose in the workplace [e.g., asbestos, pesticides, carcinogens, or chemicals] and no previous ETS attempted to require or coerce employees ‘to undertake a medical procedure [a vaccination] that cannot be undone at the end of the workday,” the AAF said in the release.

As The Hill noted, Biden’s workplace mandate, which could affect as many as 84 million employees, is set to take effect this month and “generally requires larger businesses with more than 100 employees to adopt written policies requiring workers to be vaccinated against COVID-19 or wear masks and undergo regular testing.”

In urging the Supreme Court to allow the workplace vaccine-or-test mandate — citing the ongoing COVID-19 surge — Justice Department lawyers argued that the 1970 law that established OSHA makes plain that the policy “falls squarely within OSHA’s statutory authority,” the political news outlet reported.

Solicitor General Elizabeth Prelogar said in the administration’s filing​ that the nation “is facing an unprecedented pandemic that is sickening and killing thousands of workers around the country, and any further delay in the implementation of the [mandate] will result in unnecessary illness, hospitalizations, and deaths because of workplace exposure to SARSCoV-2.”

“Delaying enforcement of the standard thus would likely cost many lives per day, in addition to large numbers of hospitalizations and other serious health effects,” she added. “That is a confluence of harms of the highest order.”

Tom Tillison


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