Attorney General Moody’s legal brief argues Biden’s ‘anger’ at unvaccinated drove vax mandates

It says OSHA demands power to force workers to ‘eat their vegetables’

By: - November 9, 2021 4:39 pm

Elbert P. Tuttle Courthouse. Credit: United States Court of Appeals for the Eleventh Judicial Circuit.

The argument that Florida, Alabama, and Georgia have filed with a federal appellate court contends that the Biden administration’s COVID vaccine mandate for large business violates the states’ rights and amounts to a sweeping attack on individual autonomy.

It also describes President Joe Biden’s alleged “anger” over the unvaccinated, plus the federal government’s “authoritarian streak,” court documents show.

Florida Attorney General Ashley Moody and the A.G.s of the other two states filed their motion Monday asking the U.S. Court of Appeals for the Eleventh Circuit to block the administration from enforcing the mandate in advance of its Jan. 4 effective date. Private interests including religious institutions are also participating.

The Fifth Circuit, headquartered in New Orleans, had already issued an injunction against enforcement within its jurisdiction, writing Saturday that the mandate raised “grave statutory and constitutional issues.” Additional challenges are likely from additional states, according to The New York Times.

Many of those challenges allege violation of the Tenth Amendment, governing relations between the federal government and the states. The Florida-Georgia-Alabama motion for a stay doesn’t mention that amendment by name but does argue that OSHA is intruding on state prerogatives.

“If OSHA may require that all employees either receive a vaccine or submit to testing, OSHA’s power is virtually limitless,” their brief says.

Florida Attorney General Ashley Moody. Credit: Office of Attorney General

“OSHA’s reading would allow it to demand that workers attend an annual physical or eat their vegetables. That type of all-encompassing power is not what the founders envisioned,” it continues. “Affording OSHA discretion to regulate any matter related to the general health and safety of the American people would arrogate to an agency the sort of broad policymaking authority that properly rests with Congress.”

What’s really driving the vaccine mandates — which would apply to companies with more than 100 employees, federal contractors, and health providers drawing federal Medicare and Medicaid money — is President Joe Biden’s frustration at the country’s vaccination rate, the motion alleges.

Moody has already filed a lawsuit challenging the contractor policy. The Legislature plans to meet in special session beginning on Monday to take up legislation intended in part to countermand the federal mandates.

As of Tuesday, 70.2 percent of Americans age 18 and above are fully vaccinated, according to U.S. Centers for Disease Control and Prevention data. Florida’s figure in that category is 70.9 percent.

“At the president’s direction and borne of his ‘anger at those who haven’t, gotten vaccinated,’ the Occupational Safety and Health Administration seeks to compel roughly one-third of the adult population of the United States to vaccinate,” the motion argues.

“The rule doubles down on the government’s recent authoritarian streak, which is marred by failed attempts to impose broadly applicable mandates through actual public-health agencies. But even the CDC does not have limitless power to regulate in the name of public health. It is even less plausible that OSHA, in executing its charge of adopting occupational safety and health standards, has anything of the kind, either.”

The Biden administration invoked emergency authority under the Occupational Safety and Health Act of 1970 (OSH Act), adopted “to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.”

“The fact that COVID-19 is not a uniquely work-related hazard does not change the determination that it is a grave danger to which employees are exposed, nor does it excuse employers from their duty to protect employees from the occupational transmission of SARS-CoV-2,” or COVID, the rule says.

But the states’ motion argues COVID represents no more a true emergency now than it has for the past year or more, when the CDC declined to impose a mandate; that the mandate doesn’t even apply to smaller businesses; and that it doesn’t distinguish between workplaces where employees might be at risk and those where risks can be managed.

It cites Kaiser Family Foundation survey suggesting that 37 percent of unvaccinated employees say they would quit rather than take the shots, representing perhaps 11 million workers. (The Biden administration argues that number will be much lower in practice.)

Furthermore, the agency departed from past practice when issuing the mandate — for example, in 1991 it refused to mandate Hepatitis B vaccinations in workplaces, concluding a voluntary program was “the best approach to foster greater employee cooperation and trust in the system,” the brief argues.

OSHA rejected similar mandates in March and May of last year (when Donald Trump was still in office) on the ground they would be counterproductive, it says.

Furthermore, existing OSHA regulations protect workers from COVID, including protections against atmospheric contamination and requirements for personal protective equipment, the motion contends. In fact, it says, the agency has already assessed $4 million in COVID-related fines.

Additionally, the agency is supposed to act independently of political pressure.

“Here, the true reason OSHA acted is clear: President Biden directed OSHA to reach the president’s preferred political outcome and OSHA has now two months later issued a rule reverse-engineering a justification for that desired outcome,” the brief says.

“This influence usurped the statutory authority the OSH Act vests in the Department of Labor, not the president, and therefore makes the rule per se unsupported by substantial evidence.”

The states assert violations of the First Amendment and Religious Freedom Restoration Act because the rule includes no exemption for religious employers. Actually, the rule does provide exemptions for medical reasons and sincerely held religious beliefs, and workers can opt instead for regular COVID testing as an alternative.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.