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Deriding the mandate as ‘un-American,’ several Republican governors have promised to sue.
Republican governors railed against President Biden’s business vaccine mandate that would impact upwards of 80 million Americans, with several threatening legal action to combat what they deemed government overreach.
“This is not a power that is delegated to the federal government. This is a power for states to decide,” said South Dakota Governor Kristi Noem during an appearance on Sean Hannity’s Fox News show. “We will take action. My legal team is already working and we will defend and protect our people from this unlawful mandate.”
Biden announced a sweeping executive order Thursday that requires businesses with more than 100 employees to ensure their workers are vaccinated or face weekly covid testing. Those that do not could face steep fines. The order also requires all federal employees and contractors to be vaccinated and offers no testing exceptions.
Idaho Gov. Brad Little confirmed Friday that the state is exploring legal action against the federal vaccine mandate on large businesses.
“I have been consistent that government should stay out of decisions involving employers and their employees as much as possible,” Little said in a statement. “It is wrong for President Biden to dismiss the concerns of millions of Americans and tell governors who represent Americans that he will use his powers as president to get them out of the way.”
Biden responded Friday to the threat of potential lawsuits over his executive order, telling Republican governors, “Have at it.”
"I am so disappointed that particularly some Republican governors have been so cavalier with the health of these kids," Biden said Friday.
It’s unclear whether any legal challenge of the federal vaccine mandate would be successful. The U.S. Supreme Court upheld the authority of state and local governments to enforce compulsory vaccination laws in a 1905 ruling. The decision came at the height of a smallpox outbreak and determined that jurisdictions do have the right to require people to get vaccinated.
All 50 states have laws in place requiring certain vaccinations for enrollment in school, though some states offer religious or philosophical exemptions to those requirements.
Biden’s order requires the Department of Labor’s Occupational Safety and Health Administration to develop a rule outlining how businesses can comply with his executive order. Upwards of 80 million American workers are expected to be affected by the order.
Additional Republican Pushback
The threat of a legal action over Biden’s federal vaccine mandate is the latest move by Republican governors to restrict or limit mandates seeking to control the spread of coronavirus infections. Despite the CDC’s recommendation that students and teachers wear masks at school, nine Republican-led states enacted legislation this year banning school districts from requiring masks.
Even as more businesses are beginning to require proof of vaccination for employees, several Republican governors have also banned use of vaccine passports, which could be used to verify vaccination status, or banned businesses from requiring proof of vaccine status from patrons or employees.
The Biden administration has gone after states for school mask bans—the Education Department opened civil rights investigations into five states that have policies banning school districts from requiring masks.
Several cities, including New York, San Francisco and New Orleans, have implemented vaccine mandates for workers and patrons of certain types of businesses including bars, entertainment venues and gyms.
Andrea Noble is a staff correspondent with Route Fifty.