Exclusive–Kobach: North Dakota Businesses and Employees Join the Battle Against the OSHA Vaccine Mandates

Traveling registered nurse Taylor Reed (R) receives a Covid-19 vaccination at Martin Luther King Jr. (MLK) Community Hospital on January 6, 2021 in the Willowbrook neighborhood of Los Angeles, California. - Deep within a South Los Angeles hospital, a row of elderly Hispanic men in induced comas lay hooked up …
PATRICK T. FALLON/AFP via Getty Images

On Tuesday, a group of North Dakota businesses and their employees filed a Petition for Review in the U.S. Court of Appeals for the Eighth Circuit challenging the legality of President Biden’s use of an OSHA “emergency temporary standard” to force vaccinations on people working at companies with 100 or more employees.  

The businesses are DTN Staffing, a company with more than 400 employees in Mandan, North Dakota, which provides nurses to health facilities, and Miller Insulation, a company with nearly 400 employees in Bismarck, North Dakota, which provides commercial, residential, and oil field insulation.  The North Dakota litigants are represented by lawyers from the Alliance for Free Citizens (where I am general counsel) and the America First Policy Institute.

The North Dakota businesses’ suit is in addition to suits that have been filed by several state attorneys general.  A suit filed by Texas Attorney General Ken Paxton on Friday gained an initial reprieve from the Fifth Circuit, which stayed the OSHA standard until further notice.  That is not surprising, because OSHA’s standard is vulnerable on so many grounds.

Importantly, the North Dakota businesses’ suit points out that OSHA standard attempts to extend the reach of the Occupational Safety and Health Act beyond the limits of the Article I, section 8, constitutional power to regulate commerce.  The vaccine mandate oversteps the commerce power for the same reason that Obamacare did:  the federal government cannot claim that it is regulating commerce when it is actually regulating people who chose not to make a commercial transaction, in this case the subsidized purchase of a vaccine.

As Chief Justice Roberts wrote for the Supreme Court majority in the Obamacare case, NFIB v. Sebelius:  “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things.”  Similarly, neither Congress nor OSHA can compel individuals to take a vaccination.

Beyond the Commerce Clause argument, which will appear in several cases challenging the OSHA standard, the North Dakota businesses’ suit also brings civil rights issues to the table, because some of the petitioners are individual employees asserting claims based in the Bill of Rights.  One of those claims is the First Amendment right to freely exercise one’s religion.  Although the OSHA standard allows businesses to permit employees with faith-based objections to avoid the vaccination by testing weekly and wearing a mask continually, that makes it very expensive to practice one’s faith.  Because the employers are not required to cover the cost of weekly COVID tests, that cost falls on the employee.  The median cost is a staggering $7,600 a year.  That’s a virtual tax on one’s religious freedom—and an exorbitant one at that.

There’s also a well-established right based in the Fifth and Fourteenth Amendments for an individual to refuse unwanted medical treatment.  The right to decline a vaccination falls squarely within that line of precedents.  And no-one should have to pay thousands of dollars in order to exercise that liberty interest either.

Finally, the North Dakota businesses’ suit points out just how irrational Biden’s OSHA standard is.  Under the testing and masking option, only the unvaccinated have to take the weekly tests.  Consider the case of several of the North Dakota employees, who have already had COVID and therefore possess natural immunity.  They are highly unlikely ever to get COVID again, but they would be tested anyway; and they would of course test negative.  But they would be the ones forced to wear a mask in the workplace.  Meanwhile, the vaccinated employees (who can get COVID) are not tested and have no recent proof of a negative test, but are presumed to be COVID-free and need not wear a mask.  It’s complete nonsense.

Because there are cases in several circuits simultaneously challenging the same agency action, federal law provides that the judicial panel on multidistrict litigation must randomly select a circuit in which the cases will be consolidated.  That is likely to happen next week.

Hopefully the judiciary will continue to move quickly and will ensure that this OSHA standard never goes into effect.  Our Constitution depends on it.

Kris W. Kobach served as the Secretary of State of Kansas during 2011-2019.  Prior to that, he was a law professor at the University of Missouri—Kansas City School of Law.  An expert in immigration law and policy, he was an informal adviser to President Trump.  He is currently lead counsel representing the North Dakota businesses and employees in the case of DTN Staffing v. OSHA.  His website is www.kriskobach.com. 

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