Capito, congressional Republicans ready arguments in COVID business vaccine mandate case

CHARLESTON — With arguments slated for next week before the U.S. Supreme Court, U.S. Sen. Shelley Moore Capito and other Republican members of Congress have added their voices in opposition of COVID-19 vaccine mandates for large businesses.

Capito was one of 46 members of the U.S. Senate and 136 members of the U.S. House of Representatives – including 1st District Congressman David McKinley, 2nd District Congressman Alex Mooney, and 3rd District Congresswoman Carol Miller – who file an amicus brief with the Supreme Court in the case of National Federation of Independent Businesses v. Occupational Safety and Health Administration.

The U.S. Supreme Court will hear oral arguments Friday for COVID-19 vaccine mandates for businesses with more than 100 employees and for healthcare workers.

OSHA released rules in November requiring companies with more than 100 employees to either get their employees vaccinated against COVID-19 or implement a weekly testing regimen for employees who choose to remain unvaccinated.

Companies had until today to implement the policy, but a federal court granted an injunction to block the rule Nov. 6. A three-judge panel of the 6th U.S. Court of Appeals lifted the injunction in a 2-1 decision last month.

West Virginia is one of multiple states who have filed suit against the federal government over mandates put in place by President Joe Biden to slow the growth of COVID-19 cases, hospitalizations, and deaths. The states are asking the Supreme Court to stay the mandate.

In the amicus brief, also known as a friend of the court brief, Capito and members of Congress argue that OSHA stepped beyond its congressional mandate when issuing the emergency temporary standard’ (ETS) provision that required COVID-19 vaccinations for large businesses.

“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,” the brief stated. “In this case, the promulgation by (OSHA) of a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency.”

The lawmakers argued that mandates meant to slow down COVID-19 cases, such as vaccinations or masking, should be left up to individual states and local governments based on the conditions in those locations.

“…Congressional members–as representatives of the people of their States and districts–have an interest in the citizens they represent being able to craft local solutions to problems facing their States and districts,” the brief continued. “Federalism concerns should be addressed before requiring federally-imposed solutions. And this is especially true when the question at issue involves an area typically reserved to the States (such as vaccine mandates). At the least, Congress should be forced to make clear any delegations of authority into areas of State control.”

Capito also co-sponsored a joint resolution in December to implement the Congressional Review Act, which allows lawmakers to disapprove rules from federal agencies. The measure was approved in a 52-48 vote in the Senate.

The large business vaccine mandate is just one of several lawsuits filed by West Virginia and other states against various COVID-19 vaccine mandates.

The U.S. District Court for the Western District of Louisiana issued an order at the end of November granting a preliminary injunction to prevent enforcement of requirements for COVID-19 vaccinations for healthcare workers in facilities that receive funding from Medicare and Medicaid.

Last month, Attorney General Patrick Morrisey said West Virginia was joining a 24-state lawsuit to block COVID-19 vaccine mandates for staff and volunteers of Head Start programs, as well as mandates requiring children in Head Start programs to wear masks. Morrisey announced Monday that a federal judge for the U.S. District Court of the West District of Louisiana has blocked that mandate.

“This is a clear victory for our state and our coalition,” Morrisey said in a statement Monday afternoon. “This mandate would have ultimately hurt, not helped, the working families, single parents, and grandparents raising grandchildren who desperately depend on programs such as Head Start.”