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Employment lawyer says more lawsuits likely to follow states’ challenges to federal vaccine mandate

Published: Nov. 1, 2021 at 7:43 PM EDT|Updated: Nov. 1, 2021 at 7:52 PM EDT
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CHARLESTON, S.C. (WCSC) - A Columbia employment law attorney said Americans should be prepared to start hearing more about fights brewing between states and the federal government over vaccine mandates.

“It’s the beginning,” Paul Porter of Cromer Babb Porter & Hicks said.

At this point, 19 states, including South Carolina, have filed four lawsuits against the federal government over a vaccine requirement for all federal contractors, part of a multi-faceted mandate announced by President Joe Biden in September.

South Carolina joined a challenge filed Friday in U.S. District Court for the Southern District of Georgia in Augusta, along with Georgia, Alabama, Idaho, Kansas, Utah, and West Virginia. The same day, 10 other states — Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming — filed a similar lawsuit in the U.S. District Court for the Eastern District of Missouri, as did Texas in the U.S. District Court for the Southern District of Texas in Galveston. The day before, Florida filed its own lawsuit in the U.S. District Court for the Middle District of Florida in Tampa.

The plaintiffs in South Carolina’s challenge claim this mandate is overreach from the federal government and violates various laws, including the Tenth Amendment, which gives states the powers that are not specifically given to the federal government. Those include police powers, which Porter described as the states’ authority to enforce orders for the health, safety, and welfare of their people.

“For state agencies that work on federal contracts, this situation is untenable. This mandate puts billions of contracting dollars in peril, including huge portions of some state agencies’ budgets,” the plaintiffs wrote.

“This is not about whether vaccines are a good idea,” South Carolina Attorney General Alan Wilson said in a statement. “I’m fully vaccinated and I encourage anyone who can to get it. But the way the Biden administration went about this is unconstitutional, and I’m sworn to uphold the Constitution. No one designated President Biden as King Joseph the First.”

Porter said while the federal government has previously used executive orders to compel contractors to act in certain ways, he said the broad nature of the vaccine mandate order leaves room for states to challenge its legality.

“I think nine justices in very fancy gowns will have — will answer that question for us, and I think that’s eventually where this will wind up,” Porter said, referring to the U.S. Supreme Court.

But Porter also noted the legal process takes time, so he said the eventual ruling could be moot, saying contractors have likely already started enforcing the mandate to comply with a Dec. 8 deadline for workers to be fully vaccinated.

“By the time these state court cases are heard, or these states’ attorney general lawsuits are heard, the mandate, whether it stands or not, will have likely already done what the administration wants it to do,” he said.

Another part of the vaccine mandate Biden announced in September requires private-sector businesses with 100 or more employees to compel their workers to be fully vaccinated or tested for COVID-19 weekly.

OSHA is expected to published a rule soon detailing how this requirement will work — for example, what fines employers will face for not complying.

Porter said he would anticipate more lawsuits will follow once that rule is published.

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