Constitutional law professor weighs in on vaccine mandate lawsuits

Posted at 4:20 PM, Nov 04, 2021
and last updated 2021-11-04 19:10:47-04

IDAHO — The Occupational Safety and Health Administration (OSHA) released its COVID-19 vaccine regulations Thursday.

It applies to businesses with 100 or more employees and requires them to either get vaccinated by January 4 or wear a mask and face weekly testing. It also requires employers to provide paid time off for employees to get the vaccine and recover from any symptoms.

With the release of this vaccine requirement, the lawsuits to stop it and a separate Biden executive order are adding up. The Republican National Committee announced a lawsuit Thursday and Idaho is part of several lawsuits challenging these vaccine requirements.

Governor Brad Little announced the state would be joining a multi-state lawsuit to stop the OSHA rule. Little also has signed onto a multi-state lawsuit against President Biden's executive order requiring federal contractors to be vaccinated.

Additionally, the State Board of Education voted Tuesday to join a lawsuit against the same executive order. As our media partners at Idaho Education News have reported, this order affects Idaho universities because of the 89-million dollars in federal contracts the universities have.

In addition to these lawsuits, the Idaho House of Representatives plans to reconvene on November 15 to pass legislation on vaccine mandates.

In May, the House recessed rather than formally adjourning, allowing them to return if needed.

House Speaker Scott Bedke said the House knew this OSHA rule was coming and that's why they decided to reconvene. He said whether the OSHA rule remains in place will play out in the courts, but the house wants to be ready and start the process on vaccine mandate legislation ahead of the regular legislative session in January.

"We want to signal to our other--our partners in other states that Idaho is in," Bedke said.

Bedke said the Attorney General, Governor and Legislature in each state opposed to the rule has a part to play. He also said he believes the Senate will join the House and reconvene later this month.

Constitutional law professor, Shaakirra Sanders said this legislation could be overruled by the federal rules already announced, "unless a court rules that that federal law or those regulations are unconstitutional."

Sanders said she expects states that have sued to make arguments about the religious exemptions, claims that this exceeds the federal government's authority and that states are in control of the health and safety of its citizens.

"That's where I think they're going to have some difficulty in the argument, given individual's ability to leave their state and possibly spread contagion across state lines," she said.

Sanders also expects the federal government to counter these arguments with the fact that states have differed in regulation and especially with states like Idaho that haven't had any statewide mask mandates, containing the spread of COVID-19 is a national issue.

"The federal government's argument very well is going to be state's aren't doing anything, businesses are coming to us, right and so we're trying to help the business, we're trying to help the national economy," Sanders said.

The courts could ultimately rule these regulations are legal or it could rule they're unconstitutional.

Sanders said there's also a third option, "it very well could be a court says, "Hey, right, we're going to put this case on a slow track, let this play out, ultimately these issues could be moot.'"