PORTLAND, Ore. (KPTV) – On the heels of federal vaccine mandates announced by President Biden last week, there are questions about whether those mandates go too far.
Particularly, the order that private businesses with more than 100 employees will have to require employees to get vaccinated or submit to weekly testing. This vaccine mandate, which will come in the form of an OSHA administrative rule, is almost certain to be challenged in court.
President Joe Biden on Thursday imposed stringent new vaccine rules on federal workers, large employers and health care staff in a sweeping attempt to contain the latest surge of COVID-19.
The vaccine mandate targeting private businesses will be issued as an "emergency temporary standard," or ETS.
Under that emergency designation, there is no requirement for a notice or comment period. The order takes effect as soon as the agency issues it, which OSHA is expected to do in the coming weeks.
The announcement of the vaccine mandate has been met with praise and sharp criticism, particularly from Republican lawmakers. There's also already talk of legal action challenging the order.
FOX 12 asked a couple of legal scholars around Oregon, asking what those challenges might look like.
"The legal basis would be that OSHA has the authority to regulate workplace safety, but of course, how far does that go?" Lewis and Clark Law Professor Tung Yin said. "I don't think this is an implausible argument. But, on the other hand, I think there are arguments that can be made against it. This isn't the kind of workplace safety that one has in mind in terms of what kind of what OSHA is entitled to do. And that something of this far-reaching nature should be left up to Congress."
"I think the challenges will be along a few lines. I think first of all there will be just that very nitty-gritty claim, or is there a grave danger under the statute," Willamette University Law Professor Paul Diller said. "And then you may see constitutional challenges where individuals or even businesses claim that this is essentially functionally a vaccine mandate as if the government had just required people to be vaccinated."
There is some legal precedent for vaccine mandates.
The Supreme Court in 1905 said the state of Massachusetts had the authority to require a smallpox vaccine under the state's police powers. Legal scholars say it's generally understood the federal government doesn't have the same police powers.