AUSTIN — Virtually every Republican state representative in Texas has endorsed legal arguments urging a federal appeals court to strike down the Biden administration’s COVID-19 vaccine requirement for businesses with 100 or more workers.
Speaker Dade Phelan, R-Beaumont, and 83 other House Republicans signed the amicus brief filed Thursday. It calls the requirement an unconstitutional overreach by the federal Occupational Safety and Health Administration. The agency is making those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests.
Staunchly conservative state Republicans are urging Gov. Greg Abbott to call a fourth special session so lawmakers can ban COVID-19 vaccine mandates. But on Wednesday, Abbott said there would be no need for a state law if Republican-led states, businesses and other groups succeed in overturning President Joe Biden’s September vaccine mandates in court.
Some view the amicus brief as House Republicans’ best hope to show they oppose the mandates, short of another overtime session, which would disrupt their deferred family vacations and plans to pivot shortly after New Year’s Day to their re-election efforts ahead of the March 1 primary.
The House Republicans, in a brief sponsored by the political action committee Texans for Responsible Government, argue that OSHA’s rule exceeds the authority of federal agencies to regulate interstate commerce. Congress didn’t delegate power to require vaccines to the subunit of the U.S. Labor Department, and it is Congress that should decide such matters, the brief argues.
“The Constitution does not protect Americans exclusively in times of normalcy; indeed, it is in difficult times that the protections enshrined by our founding documents become most crucial,” says the brief, written by Houston lawyer David J. Beck of the firm Beck Redden LLP.
The PAC’s brief was filed in the 6th U.S. Circuit Court of Appeals in Cincinnati, where various lawsuits on the large-employer COVID rule have been consolidated.
In an earlier suit before the 5th Circuit in New Orleans, which Texas Attorney General Ken Paxton helped to bring, the U.S. Justice Department argued that the rule was necessary to protect workers from the pandemic and was well grounded in law.
Blocking the mandate “would likely cost dozens or even hundreds of lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous costs,” the Biden administration said in that suit. “That is a confluence of harms of the highest order.”
But in the Texans for Responsible Government PAC’s brief, Beck wrote that making workers get vaccinated to keep their jobs constitutes “an illegal federal overreach that tramples the decisional freedom Texans know is essential to advancing health and prosperity.”
“Nothing in the Constitution gives the President the authority — either acting alone or through a federal agency — to unilaterally mandate that certain Americans receive a vaccine as a condition of employment,” the brief said. “For the President to do so is blatantly unconstitutional, and this Court should be clear and quick in telling him so.”
In the past two weeks, the state Republican Party, under Chairman Matt Rinaldi of Irving, has pressured Abbott to call a special session so state lawmakers can pass legislation that forbids any COVID-19 vaccine requirement.
Noting that other federal courts have blocked another Biden administration rule designed to nudge hospital and nursing home workers to get vaccinated, Abbott told Lubbock talk-radio show host Chad Hasty on Wednesday that a special session may not be necessary.
“All of these federal-based vaccine mandates have now been stayed or halted because of federal court rulings,” Abbott said. “If it turns out that we do continue to win those federal court rulings, which I think is going to be the case, then there is no need to pass legislation concerning vaccine mandates because there won’t be any vaccine mandates.”
