Pence Group Asks Supreme Court to Halt Worker Vaccination Mandate

Former Vice President Mike Pence speaks to a crowd during an event sponsored by the Palmetto Family organization in Columbia, S.C., on April 29, 2021. Sean Rayford/Getty Images

A group headed by former Vice President Mike Pence has asked the Supreme Court to halt President Joe Biden’s mandate forcing large businesses to require their employees to get vaccinated against COVID-19 or endure frequent testing.

Pence’s group, Advancing American Freedom (AAF), filed a friend-of-the-court brief in the emergency application filed by the National Federation of Independent Business, American Trucking Associations Inc., National Retail Federation, and other business organizations, which the Supreme Court is scheduled to hear on Jan. 7.

AAF, which argues the mandate is unconstitutional and exceeds the authority of the Occupational Safety and Health Administration (OSHA), shared the brief with The Hill newspaper.

“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 told The Hill.

AAF “promotes and defends the successful policies of recent years that yielded unprecedented prosperity at home and restored America’s strength abroad, while elevating traditional American values,” according to its website.

The Biden administration argues that the mandate, which is supposed to take effect later this month, “falls squarely within OSHA’s statutory authority.”

However, the applicant trade associations and Advancing American Freedom want the high court to grant an emergency stay of OSHA’s recently published emergency temporary standard (ETS), issued on Nov. 4, 2021.

OSHA claims to have lawful authority “to require 80 million Americans—in virtually every type of American business there is—to obtain a COVID-19 vaccine or, in the alternative, to undertake a weekly COVID-19 test and wear a mask throughout each workday,” according to court documents.

The ETS allows OSHA to create a vaccine-and-testing regime for all businesses with 100 or more employees, reaching “two-thirds of all private-sector workers,” or more than 25 percent of the population.

AAF argues in its brief that OSHA’s ETS conflicts with AAF’s “core understandings concerning the proper interpretation of Executive Agency authority and Congressionally delegated authority under the United States Constitution.”

“Through the separation of powers, the Framers of our Constitution placed boundaries and limitations on the ability of the Executive Branch unilaterally to impose mandates on American citizens, and to erect barriers to work, that are far outside the contemplation or authorization of the peoples’ elected representatives in Congress.

“OSHA’s ETS entirely ignores those limitations. 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.”

AAF’s brief also provides examples of OSHA overreach.

“Courts have struck down ETSs where OSHA failed to substantiate the existence of a true emergency, as distinct from continuing everyday hazards, or where OSHA’s assertion that the targeted danger was ‘grave; was found to be insufficiently supported.”

In this case, “OSHA’s thin justification for invocation of its extraordinary emergency authorities ... strongly suggests that the Biden Administration is not truly seeking to mitigate workplace hazards through the ETS, 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.”