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Capito, McKinley sign on to brief supporting multistate challenge of OSHA vaccine mandate before Supreme Court

MORGANTOWN – Sen. Shelley Moore Capito and Rep. David McKinley both signed on to an amicus – friend of the court – brief supporting the multistate challenged of the Biden administration OSHA vaccine mandate.

That case is slated for oral argument before the U.S. Supreme Court Friday.

Capito’s Monday release about the brief says a total of 47 senators and 136 representatives have signed on.

They say in the brief, “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 Safety and Health Administration of a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency.”

West Virginia is among the states that have challenged the mandate, which Biden and OSHA aim to achieve through an Emergency Temporary Standard (ETS) requiring private employers with over 100 employees to mandate the COVID-19 vaccine or weekly testing.

The lawmakers say in the brief, “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. 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.”

They argue, “The ETS provision of the OSH Act allows OSHA to address only ‘grave danger’ in the workplace, which includes any ‘toxic or physically harmful’ agent, without going through notice and comment when such an emergency standard is ‘necessary’. And in the statutory scheme established by Congress, these conditions are a meaningful restraint on the agency. OSHA, however, aggressively reads the restrictions as an opportunity for the agency to branch out into public healthcare policy.”

Capito said in her release that on Dec. 8, she cosponsored a Congressional Review Act joint resolution of disapproval to overturn President Biden’s vaccine mandate. The Senate approved the measure by a vote of 52-48.

On Dec. 17, the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay of the mandate. The U.S. Department of Labor has stated it will begin enforcing the ETS on Jan. 10, Capito said. The DOL 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.

McKinley said in an email exchange, “The Biden Administration has grossly overstepped its authority with its overreaching mandate that private businesses require their employees receive Covid-19 vaccinations as a condition of employment. The Covid-19 vaccine has been an important and effective tool delivering relief from the deadly pandemic. But Americans should have the freedom to make the best decision for their own health and that of their families, free from threats that they will lose their livelihood.”

He continued, “We look forward to the U.S. Supreme Court’s decision on this important question and hope they strike it down as lower courts have done.”

Monday news reports said that Former Vice PresidentMike Pence announced that his advocacy group has also filed an amicus brief in the case. The brief says the mandate is unconstitutional and would exceed previous examples of the OSHA’s use of emergency authority.

In other Biden vaccine mandate news, state Attorney General Patrick Morrisy on Monday celebrated a decision by a Louisiana federal judge that President Biden cannot impose a COVID-19 vaccine mandate on teachers in the Head Start early education program.

West Virginia had joined a 24-state lawsuit against the Head Start mandate, which the suit says, “applies to all preschool programs funded by the federal Head Start program, regulating hundreds of thousands of staff, volunteers, and preschool students nationwide. It forces vaccinations on staff, volunteers, and others in contact with Head Start students and forces masks on everyone age 2 and up.

Morrisey said on Monday, “This is a clear victory for our state and our coalition. This mandate would have ultimately hurt, not helped, the working families, single parents, and grandparents raising grandchildren who desperately depend on programs such as Head Start.”

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