WASHINGTON, D.C. – U.S. Sens. John Barrasso and Cynthia Lummis, both R-Wyo., joined Senator Mike Braun (R-Ind.), 44 other Senators, and 136 Representatives in filing an amicus brief to the Supreme Court of the United States (SCOTUS). The amicus brief was filed to an upcoming case considering the Biden administration’s recent mandate requiring private employers with over 100 employees to mandate the COVID-19 vaccine or weekly testing.

The brief argues that Congress did not give the Occupational Safety and Health Administration (OSHA) the authority to impose a vaccine mandate and urges SCOTUS to stay the mandate.

“Congressional members have an interest in the powers they delegate to agencies not being abused—the legislative authority vested in the federal government belongs to Congress, not the Executive branch. In this case, the promulgation by the Occupational Health and Safety Administration (OSHA) of a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency,” the Members wrote. “And it does so with a Mandate enacted through OSHA’s seldom-used ‘emergency temporary standard’ (ETS) provision that allows for bypass of notice and comment rulemaking under certain circumstances. That OSHA exceeded its authority in enacting the ETS Mandate is not a ‘particularly hard’ question.”

The full text of the brief can be found here.

Background:

• On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay of the Biden Administration’s vaccine mandate for large employers. The Department of Labor has stated it will begin enforcing the ETS on January 10, 2022. The Department will also give employers acting in good faith until February 9, 2022, before it will begin issuing citations for violations of the mandate’s testing requirements.
• Several parties have filed petitions for review, and SCOTUS is set to hear oral arguments on January 7, 2022, on whether to issue an emergency stay of the ETS.