Ascension Parish Business Owner Sues Biden Administration over Vaccine Mandate
The Biden administration published an Emergency Temporary Standard (ETS) that requires every worker at a private employer with over 100 employees to be vaccinated against COVID-19 or submit to weekly testing. The Pelican Institute and Liberty Justice Center immediately filed a lawsuit to challenge this unprecedented and illegal mandate. We represent Brandon Trosclair, an Ascension Parish resident who owns Ralph’s Market stores and employs over 475 workers, and six Texas-based remote workers employed by CaptiveAire.
We are challenging this rule affecting more than 80 million Americans because it exceeds the Occupational Safety and Health Administration’s (OSHA) authority to regulate hazards particular to the workplace. Congress authorized OSHA to enact rules necessary to keep workers safe from hazards they may find in the workplace, not any hazard that a worker could encounter anywhere in the world, such as a virus. Further, OSHA’s emergency rules are only available to prevent harm from toxic or physically harmful substances or agents. Communicable diseases like COVID do not fit into these categories.
Additionally, the mandate exceeds the powers of the federal government under the Interstate Commerce Clause and the Necessary and Proper Clause. In short, the Secretary of Labor is authorized to set safety standards applicable to businesses affecting interstate commerce, but the ETS has no substantial effect on interstate commerce. The ETS is neither necessary nor proper because it intrudes on areas traditionally reserved to the states. Public health measures have long been regarded as the states’ responsibility.
Finally, the authority claimed by OSHA represents an unlawful delegation of legislative power. All legislative power to make laws resides with Congress, not the executive branch.
The ETS represents an overreach of executive power that will be destructive to American businesses. Brandon’s stores are already short staffed and some of his locations were damaged by Hurricane Ida. The CaptiveAire employees involved in this lawsuit work remotely and cannot possibly spread COVID-19 or any disease in their workplace.
This case does not follow the trajectory of a typical lawsuit because there are special procedural rules governing OSHA regulation challenges. We filed this lawsuit in the U.S. Fifth Circuit Court of Appeals because 29 USC § 655(f) requires petitions challenging the validity of the standard in the United States Court of appeals, not in the district court. If challenges are filed in multiple circuits, the cases will be consolidated and heard in a single court of appeals selected in a random drawing held within ten days. In the meantime, it’s possible that the Fifth Circuit grants our request for an immediate stay of the rule that could remain in effect while the challenges are consolidated in the court selected to hear them.