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States Launch Legal Assault on Biden’s Vaccine-or-Test Rule (2)

Nov. 5, 2021, 1:02 PMUpdated: Nov. 5, 2021, 9:13 PM

Texas, Florida, Missouri, and 23 other states with Republican attorneys general have sued to block the Biden administration’s controversial rule requiring large companies to mandate that their workers get vaccinated against Covid-19 or submit to regular testing.

The Missouri attorney general’s office announced that it filed an 11-state coalition’s petition for judicial review in the U.S. Court of Appeals for the Eighth Circuit early Friday. The Occupational Safety and Health Administration published its emergency regulation shortly after Missouri’s announcement.

A group of five states led by Texas filed in the Fifth Circuit, three states led by Florida filed in the Eleventh Circuit, and seven states led by Kentucky filed in the Sixth Circuit. All four circuits that have received state petitions so far are dominated by Republican-appointed judges. The circuit that hears the consolidated case against OSHA’s rule will initially be chosen via a lottery.

More lawsuits from additional Republican-led states, conservative advocates, businesses, industry groups, and others are expected. Opponents of past emergency standards have found success against OSHA in five out of the six rules that faced legal challenge.

OSHA issued the rule, which applies to companies with at least 100 workers, under its authority to create emergency temporary standards that are necessary to address a “grave danger.”

Several Republican attorneys general have blasted the Biden administration’s plan to require businesses to mandate shots even as OSHA was developing its rule. Some GOP officials on Thursday reiterated their vows to sue, when OSHA made its emergency rule public.

“The federal government should not be forcing private employers to require their employees to get vaccinated or foot the cost to test those employees weekly,” Missouri Attorney General Eric Schmitt said in a statement.

Missouri’s petition alleges that OSHA lacks the statutory authority to issue the rule that goes beyond workplace safety and into public health policy. More broadly, its petition claims that the federal government’s attempt to mandate vaccinations goes beyond it’s constitutional authority and infringes on states’ police powers reserved by the Tenth Amendment.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Missouri’s petition was joined by Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming. A handful of businesses and organizations also joined the petition, including the Christian Employers Alliance and the Home School Legal Defense Association.

Texas’s petition included Louisiana, Mississippi, South Carolina, and Utah, as well as several businesses. Florida’s petition was joined by Alabama and Georgia, and also included industry associations, businesses, and private schools.

Kentucky’s petition was joined by Idaho, Kansas, Ohio, Oklahoma, Tennessee, and West Virginia.

A pair of Kentucky-based seminaries represented by the Alliance Defending Freedom, a conservative Christian advocacy group, also sued to block the OSHA rule in the Sixth Circuit.

Several groups filed legal challenges against the rule on Thursday, although it’s unclear whether they acted too soon and their petitions ultimately will need to be amended or be deemed invalid. The Second and D.C. circuits have said the clock starts for challenging an OSHA rule when it’s published in the Federal Register. The Missouri-led state coalition’s announcement of its petition also came prior to the rule’s official publication.

Some of these challengers have filed motions asking courts to immediately halt enforcement of the rule. More stay requests are expected to roll in as parties move forward with their litigation strategies.

The cases are Missouri v. Biden, 8th Cir., No. 21-03494, Petition filed 11/5/21, Texas v. Department of Labor, 5th Cir., Petition filed 11/5/21, Florida v. OSHA, 11th Cir., No. 21-13866, Petition filed 11/5/21, Kentucky v. OSHA, 6th Cir., No. 21-4031, Petition filed 11/5/21, and The Southern Baptist Theological Seminary v. OSHA, 6th Cir., No. 21-04033, Petition filed 11/5/21.

(Updated with additional reporting throughout. )

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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