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COVID Archives – Concerned Women for America

Sensible Supreme Court Opinion Halts Vaccine Mandate

By | Briefs, Case Vault, Gorsuch, LBB, Legal, News and Events | No Comments

In a “per curiam” opinion, meaning a decision authored by the entire Court, instead of a single justice, the United States Supreme Court granted a stay of the Occupational Safety and Health Administration (OSHA) vaccine mandate for employers with 100 or more workers. The rule, therefore, will not go into effect until the case goes through the entire appellate process.

But the Court’s division can be further assessed by the fact that the three more liberal justices—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan— dissented from the opinion, and Justices Clarence Thomas and Samuel Alito joined a very strong concurring opinion by Justice Neil Gorsuch.

The Court’s sensible approach to the issue simply noted that OSHA’s “emergency standard,” which it used here and which circumvents the usual public notice and comment accountability processes, should be used with precision and caution. Instead, the Court notes that the OSHA rule which applies to 84 million workers “requires workers receive a COVID-19 vaccine, and it pre-empts contrary state laws,” works as “a blunt instrument.” It found the exemptions presented (for employees who work outside 100 percent of the time or who work exclusively outdoors, for example) were “largely illusory.” The rule “draws no distinctions based on industry or risk of exposure to COVID-19.”

The Court found those objecting to the rule were “likely to succeed on the merits of their claim that [OSHA] lack[s] authority to impose the mandate.”

In doing so, the Supreme Court returns power to the states and the people, where it belongs, because the vaccine mandate goes way beyond establishing a simple workplace standard, as the agency is charged to enact, and into establishing nationwide public health policy. Remember, OSHA has never in its history done anything like this.

And here is where Justice Gorsuch’s concurrence is extremely helpful because it acknowledges what most Americans understand. This administrative mandate is trying to accomplish what President Joe Biden could not get done through the people’s representatives. He is trying to enact something Congress up until now has rejected.

If the people want a vaccine mandate, they could easily demand it from Congress. The reality is most people do not. In fact, the President’s approval numbers have been steadily declining. The latest numbers show him at an all-time low of 33 percent.  Fifty-five percent disapprove of his handling of the pandemic.

That is why President Biden had to work through OSHA to establish this national vaccine mandate. He lacks the necessary support to do it otherwise.

Justice Gorsuch wrote:

The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress.

That power belongs to the people, said the Supreme Court today—to those most immediately accountable to them. The concurrence noticed that “a majority of the Senate even voted to disapprove OSHA’s regulation.” Therefore, it seemed reasonable to conclude “the agency pursued its regulatory initiative only as a legislative ‘work-around.’”

With this decision, the Court re-affirms what it has said in the past, that major questions of doctrine with broad effects on the public are left to the people’s elected representatives, and that they must make it very clear when they are giving such broad power to an agency. The concurrence said this rule, known as the “major questions doctrine”:

[E]nsures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.

And even then, the concurrence suspects that such an intrusive mandate brought through the backdoor of an administrative agency might run afoul of the “nondelegation doctrine,” which “ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.”

Justice Gorsuch concludes:

On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate. On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.

Whatever your view of the COVID vaccine in general, it should be encouraging to all to see the Court protecting the Constitutional structures that guard our liberties in this way. As Justice Gorsuch put it, “The question before us is not how to respond to the pandemic, but who holds the power to do so.”

The rule will be halted for now, but the case will continue. As we await further proceedings let us pray for a wiser, more honest, and unifying approach to fighting the pandemic going forward.

Bipartisan Senate Majority Bucks Biden’s Private Sector Vaccine Mandate

By | Defense of Family, News and Events, Religious Liberty | No Comments

On December 8, 2021, a bipartisan majority in the U.S. Senate voted 52-48 to invalidate the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) imposing President Biden’s COVID-19 vaccine mandate on private sector employers with 100 or more employees. Democrat Senators Joe Manchin (D-West Virginia) and Jon Tester (D-Montana) joined all 50 Republicans in passing Sen. Mike Braun’s (R-Indiana) resolution of disapproval under the Congressional Review Act, a critical tool at Congress’s disposal to check executive overreach.

Prior to the vote, Concerned Women for America Legislative Action Committee sent a letter to Senators condemning the OSHA ETS rule and urging members to support the resolution. “President Biden’s vaccine mandate exceeds the authority granted to OSHA by Congress and is yet another attempt to circumvent the law and implement through federal government coercion what the American people have rejected,” declared CEO and President Penny Nance. The Senate agreed.

This marks yet another key repudiation of President Biden’s tone-deaf decree, coming soon after the Fifth Circuit Court’s stay on the mandate and a series of district court injunctions nationwide. Should the U.S. House of Representatives also pass the disapproval resolution and send it on to the President’s desk, the question arises whether Biden will have the sense to admit defeat and repeal his order or choose instead to veto and overrule the will of the people, their representatives, and the courts.

To date, nearly 110,000 public comments have been submitted to the Federal Register regarding the OSHA vaccine mandate, with some noting that it is their first time taking formal action to oppose federal rulemaking. Such engagement clearly demonstrates the burdensome toll the mandate has taken on hard-working citizens.

Americans are pushing back with one unified message: We refuse to choose between our livelihoods and our civil liberties. Public health must always be balanced with individual freedom. We will continue to share the latest developments on this unconstitutional rule.

On the Maine Vaccine Mandate Case Before the U.S. Supreme Court

By | Case Vault, LBB, Legal, News and Events, SCOTUS | No Comments

In a recent emergency application before the United States Supreme Court, the justices declined an appeal from Maine health care workers to stop the enforcement of a vaccine mandate that did not contain a religious exemption. Though certainly disappointing, those concerned with these oppressive vaccine mandates should not read much into the denial, and indeed should be encouraged by Justice Neil Gorsuch’s excellent discussion of the legal principles involved which Justices Clarence Thomas and Samuel Alito joined.

It was disappointing that Justices Amy Coney Barrett and Brett Kavanaugh declined to hear the case, but we should note their denial was a technical one as to the timing of the appeal. “[D]iscretionary consideration counsels against a grant of extraordinary [emergency] relief in this case, which is the first to address the questions presented,” wrote Justice Barrett. Practically all she wrote in her one-paragraph concurring opinion.

The bottom line is that the Supreme Court will end up taking one of the many cases challenging these vaccine mandates soon, and I am extremely confident that, at the very least, a religious exemption will be required.

Any government or private entity taking action against a worker’s request for religious accommodation does so at their own peril, putting itself at serious risk of legal liability once these cases work themselves out which will not take long, given how aggressively the strong arm of government is seeking to assert itself.

Not even a week after the Supreme Court’s denial in this case, the United States Court of Appeals for the Fifth Circuit blocked the Biden administration’s latest mandate. “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court,” the per curiam (by the court) noted.

There are a lot of moving parts in this battle, so be patient and continue to pray for the judges, the justices, and the attorneys involved. The Biden mandate is to take effect on January 4, so the one thing that we can be sure of is that it will move fast.

I commend to you Justice Gorsuch’s exceptional dissent from the denial of the application for injunctive relief against Maine’s vaccine mandate which demonstrates why we can be confident that religious liberty will win. The government must treat religious exceptions on the same level as any other exemptions. They cannot target religious exemptions as less worthy of protection. “Maine has so far failed to present any evidence,” wrote Justice Gorsuch, “that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.”

He concluded:

Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.

Indeed. This is why the Court will have to address the issue in the not too distant future. Continue to pray.

Concerned Women: Biden’s Vaccine Mandate Unwise & Unconstitutional

By | Defense of Family, National Sovereignty, News and Events, Press Releases | No Comments

For Immediate Release
September 14, 2021

Contact: Jacklyn Washington
202-748-3501
[email protected]   

Concerned Women: Biden’s Vaccine Mandate Unwise & Unconstitutional

Washington, D.C. — Penny Nance, CEO and President of Concerned Women for America (CWA), had this to say on the news that President Joe Biden has instructed the Department of Labor to develop emergency regulations giving the Occupational Safety and Health Administration (OSHA) the authority to enforce a national vaccine mandate for employers with at least 100 employees:

“Disastrous rollouts of seemingly well-intentioned policy has become the defining feature and legacy of the Biden-Harris Administration. One look at the withdrawal from Afghanistan tells you everything you need to know, but the incompetence has been on full display in their handling of the COVID pandemic as well.

“Worse yet, the authoritarian instincts surfacing with the employee vaccine mandate go well beyond incompetence and into outright violation of Americans’ civil liberties. Public health must always be balanced with individual freedom.

“This proposed mandate shows a complete disregard for these freedoms. It reveals to us a President who has lost touch with the people he represents and who now seeks to impose his policy choices by abusing the constitutional powers granted to him by ‘We the People.’

“I chose to be fully vaccinated, but regardless of individual views on taking the vaccine, this unnecessary federal mandate must be met with full-throated opposition from all freedom-loving Americans. It is wrong to force people to choose between feeding their families and following their consciences on this issue. Employees and employers have hard choices ahead, and we support them regardless.

“CWA employs well under 100 women, but should the threshold change, we would not comply. The nanny state needs to back off, and President Biden needs to be reminded that the American people are not the enemy. At a time when the country needs to come together to fight a multitude of threats at home and abroad, this weak and divisive action leaves our nation vulnerable and discouraged.

“We are confident the Biden Administration will lose in court; however, he should reconsider his ways now before he inflicts further damage on the country.”

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Concerned Women for America is the nation’s largest public policy women’s organization with a rich history of over 40 years.