WYOMING – Gov. Mark Gordon announced on Friday, Nov. 5, that Wyoming has taken the next steps as part of an 11-state coalition that filed a lawsuit in federal court to halt the emergency temporary standard issued by the Occupational Safety and Health Administration. That OSHA order required employers of private businesses with over 100 employees to mandate vaccinations or masking with weekly testing.
Officially, a petition for judicial review was filed in the United States 8th Circuit Court of Appeals on Nov. 5 and a motion for stay was filed earlier this week.
Additionally, Wyoming and several other states filed a motion for preliminary injunction in lawsuit previously filed against the Biden administration in requiring federal contractors to get vaccinated. Together, the coalition of states has asked the court to stop action and implementation.
“These legal actions are essential to stopping the unconstitutional mandates from the Biden administration. This is the result of the hard work by our Attorney General,” Gov. Gordon said. “I thank General Hill and her team for their efforts to protect the rights of Wyoming citizens and her industries. We have been preparing for this battle and, as promised, we are now joined in the fight to protect our civil liberties. Rest assured I am committed to using every tool possible to oppose these unlawful federal policies.”
Robin Sessions Cooley, the director of the Wyoming Department of Workforce Services, said about 106,462 individuals in Wyoming work for public and private employers with at least 100 people. That means 41.7 percent of Wyoming’s workforce and 18.5 percent of the state’s total population would fall under the umbrella of the Biden administration’s order.
The group’s lawsuit asked the court for an immediate stay pending judicial review.
While the coalition of states seek legal relief from these mandates on the basis of unconstitutionality, they’ll be combating two standing precedents for requiring vaccinations. Together, these two Supreme Court concluded the federal government may tell people to get vaccines, unless they belong to an exempt group, or face a penalty.
The National Constitution Center cites a 1905 ruling in the case of Jacobson vs. Massachusetts that local health authorities could compel adults to receive the smallpox vaccine, as stated in state law. In that case, Henning Jacobson refused a free smallpox vaccine that was required by the city of Cambridge. He was fined $5 as a result. In court, Jacobson argued the vaccination law violated his constitutional right of due process.
Supreme Court Justice John Marshall Harlan concluded states, under general police powers, had the ability to enact vaccine laws to protect citizens. Those laws were put in place to allow states to protect health, safety and general welfare of the public.
The second decision of standing order the National Constitution Center cited was Zucht v. King from 1922. In that case, it was argued students in public and private schools were exempt from receiving the smallpox vaccine – again on grounds of the 14th Amendment related to due process. Justice Louis Brandeis said the previous order established law in this case.
“Long before this suit was instituted, Jacobson v. Massachussets, had settled that it is within the police power of a state to provide for compulsory vaccination,” Justice Brandeis wrote.
While those cases have laid the legal footprint for vaccines since, the Supreme Court’s interpretation of the 14th Amendment may have changed in the 100 years since.
The coalition of states that filed the lawsuit plainly stated out the group believes such an order is unconstitutional. Although, instead of saying so on previous grounds of the 14th Amendment, the group cites the 10th Amendment, which reserves certain powers to the states.
“OSHA also lacks statutory authority to issue this mandate, which it shoe-horned into statutes that govern workplace safety, and which were never intended to federalize public-health policy,” the petition filed by the states reads.
Referring back to the previous Supreme Court decisions, the group’s petition states that compulsory vaccinations lie within the police powers of states and are matters that “don’t ordinarily concern the national government.”
That’s where legal scholars believe there are uncertainties. The Congressional Review Service said federal vaccine mandates are theoretically possible, as the Executive Branch could cite the Public Health Service Act. That ensures necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or possessions.”
That legal standing does allow for religious exemptions.
The legality of state policy, like those that passed laws banning vaccine passports, could also see a legal challenge as the federal government maintains authority with its laws in certain cases. For example – as decriminalized, medicinal and recreationally legal marijuana laws pass in states, dispensaries and businesses that sell those products have to operate on a cash-only basis as federal law won’t allow those businesses to use conventional banking, since marijuana remains a schedule I illegal substance under federal law.