Nebraska Attorney General Doug Peterson is among 11 attorneys from GOP-led states who on Friday filed a lawsuit challenging a new federal rule that requires workers at businesses with 100 or more employees to get vaccinated against the coronavirus or be tested weekly.
The Occupational Safety and Health Administration announced the emergency rule on Thursday. It calls for employees of companies that size to be vaccinated by Jan. 4 or be tested weekly and wear masks. Failure to comply could result in penalties of nearly $14,000 per violation. It includes a religious exemption, as well as one for people who work exclusively outdoors or away from others.
In the suit, filed against the Biden administration in the St. Louis-based Eighth Circuit Court of Appeals, the states allege the new rule is “unconstitutional, unlawful and unwise.”
“The federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment,” it reads.
They also argue that OSHA doesn’t have statutory authority to issue the rule, saying it was “shoe-horned” into laws governing workplace safety that weren’t meant to “federalize public-health policy.”
The Biden administration has been encouraging widespread vaccinations as the quickest way out of the pandemic. A White House spokeswoman said Thursday that the mandate was intended to halt the spread of a disease that has claimed more than 750,000 lives in the U.S.
The top legal official for the U.S. Department of Labor, which includes OSHA, has said legal precedent allows it to issue rules that keep workplaces safe and that those rules pre-empt state laws.
Missouri Attorney General Eric Schmitt submitted the suit. In addition to Nebraska, states that signed onto the lawsuit are: Arizona, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire and Wyoming. A handful of businesses and organizations signed on, too.
In a prepared statement reacting to the OSHA rule Friday, Peterson made arguments similar to what’s in the suit — that compulsory vaccinations are within states’ authority and the Biden administration recognized that until a recent reversal.
“By announcing an OSHA rule that is 490 pages long in its preprint form, it is clear that the Biden Administration is trying to create new law through executive order,” Peterson added. “This Administration has left us no choice but to go to court to protect constitutional boundaries of power and the 44% of Nebraska workers that fall under this unconstitutional mandate.”
Peterson was also among a group of Republican state attorneys general who last week sued the Biden administration over another mandate that applies to federal contractors.
Nebraska Gov. Pete Ricketts last week signed an executive order barring multiple state agencies from complying with the requirements.
Ricketts, who has consistently called on eligible people to get the COVID-19 vaccines, has called the requirements an “abuse of the federal government’s power.” He had previously said Nebraska would take OSHA to court to try to get an injunction.
He praised Peterson for Friday’s legal action.
“Nebraska is playing a leading role in suing the federal government to stop President Biden’s draconian and illegal coronavirus vaccine mandate,” Ricketts said in a prepared statement. “Thank you to Attorney General Peterson for his leadership. Nebraska will continue to fight back, so we can safeguard our freedoms and protect the Nebraskans who are risk of losing their jobs because of the President’s mandate.”
Some Nebraska state lawmakers tried to call a special session to pass laws banning vaccine requirements. But to Ricketts’ disappointment, the group earlier this week fell five senators short of what’s required to call a special session.
The OSHA rule faces other legal challenges. The Daily Wire, a conservative media company, filed a challenge in federal court on Thursday. So did companies in Michigan and Ohio represented by a conservative advocacy law firm.
This story includes material from the Associated Press.