Biden vaccine mandate isn't in effect, isn't enforceable, Republican AGs argue 

States vow immediate legal challenge to block implementation, once regulatory rule is officially announced.

Updated: October 21, 2021 - 10:58pm

The Facts Inside Our Reporter’s Notebook

President Joe Biden's executive order requiring private employees to get the COVID-19 shots hasn't gone into effect and therefore isn't enforceable, argue several Republican attorneys general — and  if and when the regulation does go into effect, they vow, they will immediately sue to stop it.

"No such rule or regulation is currently in effect," Montana Attorney General Austin Knudsen wrote in an open letter to all Montanans, and "there has been a great deal of confusion" since Biden announced his mandate Sept. 9.

The letter was released the same day as an announcement made by Biden, who said, "The Labor Department is going to soon be issuing an emergency rule for companies with 100 or more employees to implement vaccination requirements."

The Department of Labor's Occupational Health and Safety Administration only last week submitted the initial text of the mandate's regulatory language to the Office of Management and Budget for review. This is the first of several steps in the regulatory process.

OSHA will implement, oversee and enforce the Biden mandate, which it has yet to do. It plans to do so under an obscure authority known as "emergency temporary standards" that has been used only a handful of times.

"Under certain limited conditions, OSHA is authorized to set emergency temporary standards that take effect immediately and are in effect until superseded by a permanent standard," the agency explains at its website. "OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards and that an emergency standard is needed to protect them. 

"Then, OSHA publishes the emergency temporary standard in the Federal Register, where it also serves as a proposed permanent standard. It is then subject to the usual procedure for adopting a permanent standard except that a final ruling should be made within six months. The validity of an emergency temporary standard may be challenged in an appropriate U.S. Court of Appeals."

The time frame for when and if the OSHA rule would go into effect has yet to be determined, meaning currently no federal vaccine mandate exists related to OSHA and private companies. 

The order would impact at least 80 million Americans who work at a company that has more than 100 employees. The order requires them to provide proof of receiving two doses of the COVID shots to remain employed, or be tested for COVID-19 once a week.

"The bottom line: We're going to protect vaccinated workers from unvaccinated co-workers," Biden said at a press briefing, tacitly conceding that the vaccine doesn't provide full protection. 

The mandate was a reversal of policy advocated by the White House just five months earlier. On April 6, White House Press Secretary Jen Psaki told reporters: "The government is not now, nor will we be supporting a system that requires Americans to carry a credential. There will be no federal vaccinations database and no federal mandate requiring everyone to obtain a single vaccination credential." 

However, after Biden's Sept. 9, mandate, numerous companies issued vaccine mandates requiring employees to provide proof of vaccination status in order to remain employed. Some companies issued fines for employees who chose to not get the shots. Some rejected religious exemption requests, others rejected exemption requests from those who could prove they have natural immunity after they got the coronavirus. 

Texas Attorney General Ken Paxton argues the mandate is unconstitutional, and in response to pushback throughout the state, Texas Gov. Greg Abbott issued his own mandate prohibiting all entities in Texas from issuing vaccine mandates as a condition of employment.

Knudsen says his office is "preparing to immediately challenge and enjoin this federal overreach on a variety of grounds when the Biden administration issues its announced rule." 

Oklahoma Attorney General John O'Connor also announced that no federal rule mandating employers to require their workers to get the shots exists. He's instructed employers — and Oklahomans — to ignore Biden's order. 

"I urge Oklahoma employers to disregard the Biden Administration's wishes to the contrary," O'Connor said in a statement. "In the event federal emergency rules are issued that place such an unlawful demand upon employers, our office will be joined by other state Attorneys General across the country to quickly sue and seek an injunction against any implementation or enforcement."

Oklahomans, he argues, have the right to make their own health decisions, including whether or not they get the COVID shots.

"Employers that are mandating vaccines are unfortunately doing so upon their own initiative," he said. "Religious, medical, and personal exemptions should be uniformly approved by those employers at the very least."

Arizona Attorney General Mark Brnovich already sued the Biden administration over the vaccine mandate, arguing it violates the Equal Protection Clause of the U.S. Constitution.