States sue over new Biden vaccine rule for businesses, claim federal overreach

Judy Woodruff:

This weekend, a federal appeals court in Louisiana temporarily blocked the Biden administration's requirement that millions of private sector workers get vaccinated against COVID-19 or get tested weekly.

The new rule, formally introduced just days ago, has led more than two dozen states to file multiple legal challenges.

John Yang has the story.

John Yang:

Judy, a three-judge panel of the Fifth Circuit Court of Appeals in Louisiana agreed on Saturday to block the new rule while it's being reviewed.

The judges said they took the action because the petitions give cause to believe there are grave statutory and constitutional issues with the mandate.

Alan Wilson is the attorney general for the state of South Carolina, which is one of the plaintiffs.

Mr. Wilson, thanks so much for joining us.

Tell us why you joined this action, why you joined us challenge to this rule.

Alan Wilson (R), South Carolina Attorney General : Well, for the very reasons that the Fifth Circuit Court of Appeals stated, because of the grave statutory and constitutional issues at stake here.

And one of the things that we did about six weeks ago is, 24 states signed a letter to the administration — two other states, by the way, did their own letter, so 26 states in all sent a letter to the president saying that what you were doing through executive diktat is unconstitutional. You're expanding the power of OSHA beyond what Congress had originally intended it.

And so what we're trying to do is to keep that authority constrained. OSHA does not have the authority to basically put this kind of mandate into practice. And so we're trying to protect the 85 to 100 million Americans who would be affected by this if it were to go into effect.

John Yang:

I want to make — be sure we're clear on what this argument is about and what it's not about.

As I understand it — and correct me if I'm wrong — it's not about whether or not people should get the vaccine. It's about whether the government through OSHA administratively should order employers to do this.

Alan Wilson:

Absolutely.

I mean, many of my colleagues, including myself, are already vaccinated. This is not about whether or not vaccine is good or bad policy. It's about the role of government.

First off, OSHA stands for Occupational Safety and Health Administration. It was basically created 50 years ago to protect employees who operated in certain occupational fields from dangers and hazards inherent or specific to that type of field.

It wasn't created to protect employees from some general future threat that might exist in the world. So, what they're doing is, they're basically expanding the authority of OSHA beyond what Congress originally gave it. And this is a violation of separation of powers.

They're also passing — they're violating the Administrative Procedures Act through an arbitrary and capricious rule. So, basically, that the standards are created such that you could have 99 people in one building who don't have to comply because they're under 100, and you could have two people in 50 states, in 50 state offices have to comply because they are 100-person employ — or a 100-employee company.

So the standards are arbitrary and capricious. And the rule is beyond the scope of what the authority was given to OSHA.

John Yang:

And, again, this is because it's an administrative act.

If this had been a law, if Congress had passed a law saying this, would you be taking this — the same position?

Alan Wilson:

Well, it depends.

First off, let's start with this. States have general health care, police authority, police powers, we call it. Congress has only been given certain powers in the Constitution. And if Congress were to pass a law that fell under one of those authorities, and they had the authority to do this, we'd be having a very different conversation.

I personally feel like it's a bridge too far for Congress to pass some kind of general health care police authority to the states. But if they were doing it through their spending authority or their interstate commerce authority, maybe you can make a more plausible argument. It would be cognizable.

What they're doing here is, through administrative fiat, they're basically — basically expanding the administrative authority of a regulatory agency well beyond what Congress gave it, and they're using it to cram down their policies on the American people. They simply cannot do that.

John Yang:

People on the other side make the argument, the public health argument of trying to vaccinate as many people as possible. What do you say to them? What's your response to that?

Alan Wilson:

This is what I say to people on the left.

You may agree with the policy prescriptions of this administration or any government because you happen to like the people who are running it. But once you expand the power of any government, especially the federal government, that government entity will never give that power back.

And one day, people you don't agree with and that you don't like will be using the same power against you. This is about constraining and having limiting principles, constraining the power of the federal government. So if you're a person the left who thinks this is about protecting the health of society, that's great. I don't challenge your motives.

But doing it this way is violative of the Constitution and it is a power that the people will never get back.

John Yang:

People who are on the other side of this argument, not necessarily left or right, but also point to the private employers who have put mandates on their employees.

As a state attorney general, do you have any problems with that, with private employers doing this?

Alan Wilson:

Listen, private employers make people wear uniforms, make people dress a certain way. They have certain rules that they implement. There is a — there's basically a liberty interest on the part of a private employer.

If a private employer were to do this, that would be different. This is the federal government compelling private employers to compel their employees through regulatory and executive diktat. They can't do that. A private employer acting on their own conceivably could do that. But that's not what's happening here.

This is about the role of the federal government involved in people's personal decisions within their companies.

John Yang:

Attorney General Alan Wilson of South Carolina, thank you very much, sir.

Alan Wilson:

Good to be with you.