Capito joins amicus brief urging the Supreme Court to reject Biden's vaccine mandate on private businesses

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  • Shelley Moore Capito
    United States Senator from West Virginia
  • Joe Biden
    Joe Biden
    46th and current president of the United States

Jan. 4—WASHINGTON — U.S. Senator Shelley Moore Capito, R-W.Va., has joined 46 senators and 136 U.S. House members in filing an amicus brief urging the U.S. Supreme Court to reject President Joe Biden's vaccine mandate on private employers.

That mandate, scheduled for enforcement beginning Jan. 10, requires private employers with more than 100 employees to mandate the COVID-19 vaccine or weekly testing. The Supreme Court is scheduled to hear oral arguments Friday in the case about whether to issue an emergency stay of Biden's rule.

The brief filed by the Republican lawmakers argues that Congress did not give OSHA the authority to impose a vaccine mandate and urges the Supreme Court to stay the mandate, according to a statement Tuesday from U.S. Senator Shelley Moore Capito, R.-W.Va.

In the brief, the members write: "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. In this case, the promulgation by the Occupational Health and Safety Administration (OSHA) of a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency. And it does so with a Mandate enacted through OSHA's seldom-used 'emergency temporary standard' (ETS) 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."

"Moreover, congressional members—as representatives of the people of their States and districts—have an interest in the citizens they represent being able to craft local solutions to problems facing their States and districts," according to the members' brief. "Federalism concerns should be addressed before requiring federally-imposed solutions. 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."

Capito said that she voted on Dec. 8, 2021 to pass a Congressional Review Act joint resolution of disapproval, which she co-sponsored, to overturn President Joe Biden's vaccine mandate on private businesses with more than 100 employees. The Senate approved the measure by a vote of 52-48.

On Dec. 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit's stay of the Biden administration's vaccine mandate for large employers, according to Capito's statement. The U.S. Department of Labor has stated it will begin enforcing the ETS on Jan. 10. The department will also give employers acting in good faith until Feb. 9 before it will begin issuing citations for violations of the mandate's testing requirements.

Several parties have filed petitions for review, which will be considered during Friday's oral arguments before the Supreme Court.

Contact Greg Jordan at gjordan@bdtonline.com

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