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Constitutional scholars, Utah lawmakers push back on vaccine mandate

President Joe Biden and first lady Jill Biden wave after stepping off Marine One on the Ellipse near the White House, Monday, May 3, 2021, in Washington. In September, the president announced plans for OSHA to issue a rule requiring either the COVID-19 vaccine or weekly testing for companies with more than 100 workers. (AP Photo/Patrick Semansky)

If litigated, a constitutional law professor and two Utah lawmakers say they don’t think President Joe Biden’s proposed COVID-19 vaccine mandate for businesses would hold up in court. 

Last week, Mr. Biden announced plans for companies with more than 100 workers to require COVID-19 vaccination or weekly virus testing. According to the Associated Press, OSHA, the Occupational Safety and Health Administration, would issue the rule, with penalties of $14,000 per violation. The White House did not set a firm date for the rule to take effect. 

Utah lawmakers on vaccine mandate: Unconstitutional

Sen. Mike Lee, R-Utah, who served as a clerk for Supreme Court Justice Samuel Alito and worked in the area of constitutional law before his election to the Senate, believes President Biden cannot legally put a widespread COVID-19 vaccine mandate in place.

“They are ignoring the fact that the president is not a king. Our founding fathers made a really good decision to not have a monarch,” Lee said on Fox News Monday morning.

“There is no federal law, there is no provision under the constitution that gives the president the power to just say, you know, I’m in charge of everything, my job is to keep the American people safe regardless of whether the law empowers me to do that,” he said.

Monday, Utah Gov. Spencer Cox added his voice to the criticism on Fox Business. 

“What we see is this kind of ‘end justifies the means.’ If they think it’s right, the right policy, then it doesn’t matter what the law says or the Constitution says or the role of another branch of government,” Cox said. “And that’s so dangerous.” 

Cox said he fully supports the push for more Americans to receive the COVID-19 vaccine, but not this way. 

“You won’t find a governor out there that has been more supportive of the effort to get people vaccinated. It’s so important, we desperately need more people vaccinated to get out of this crisis. But we are also a country of laws, a country with a Constitution,” he added. 

Legal experts weigh in

University of Utah law professor Paul Cassell expounded on the concerns of the Utah lawmakers during KSL’s Dave and Dujanovic Show.

“This is not a situation where Congress has passed a law giving the president clear authority to set vaccine conditions. I think the president is going to face an uphill battle in the courts when these mandates are reviewed,” explained Cassell.

He said the president is using a 50-year-old law that doesn’t fit this situation. In essence, he’s trying to fit a square peg in a round hole.

Cassell said the president may have the power to mandate vaccines for federal employees. But he does not have power to regulate conditions of private employment.

“I think it’s clear his federal mandates are going to be upheld, but I think it’s dubious that his mandates for private business will be upheld.”

Judicial process likely to take time

But Cassell said it will take time for judicial challenges to go through, so for the short time, those mandates may be upheld and businesses will have to pay fines.

Those fines are up to $14,000 per employee who is not vaccinated. And it does not include an exemption for natural immunity from a COVID-19 infection.

“Most of these business can absolutely afford it. And what we’re talking about here is saving people’s lives and protecting them,” said White House spokeswoman Jen Psaki, when asked about the cost. “I’d also say there are a number of companies that have already applied this — have already put requirements in place. It makes for safer workplaces, it makes people want to come back to the workplace, it makes for healthier and happier employees who know that they are safe when they go to work.  And that’s a cost as well.”

Lee agreed with Cassell that until the courts weigh in, businesses may feel forced to pay the fine.

“They can’t tell for sure what the Supreme Court will do or when it might do it. so i think most businesses are going to end up paying that, almost as a form of extortion. That’s where due process is lost,” he said.

Other members of Utah’s congressional delegation and state leaders weighed in last week after President Biden’s announcement. You can read those comments here.

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