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September 14, 2021

By Idaho First District Representative Heather Scott

Hundreds of thousands of federal employees and contractors across America will be forced to choose between getting the jab or being tested weekly or losing their job. Some legal experts are saying the President’s requirement is legal, while others believe it is patently unconstitutional.

In President Biden’s recent press conference/executive order, he detailed three main directives that he believes Congress has delegated him the authority to do through the executive rulemaking process. All will go into effect in the next few months.

Here are his main directives:

  #1 Employer Mandate directing employers with 100 or more employees to mandate the vaccination under a Department of Labor rule. This rule will be administered under the Occupational Safety and Health Administration and will go into effect in about six months. Biden is using his authority, given to him by Congress, to direct an agency to promulgate rules to force this on businesses. This will almost certainly be challenged in the courts.

  #2 Facility Mandate requiring employers of all facilities that receive Medicaid or Medicare funding to have their employees vaccinated. This will go into effect in October. Under the Social Security Act, a federal law passed by Congress, the Secretary of the Department of Health and Human Services can promulgate rules that are “beneficial to patients of the facilities.” Although there is no penalty for violating such rules, facilities can lose funding for not complying. This will likely pressure Idaho businesses to enforce the mandate, unless there is a state law directing them otherwise.

  #3 Federal Employees/Contractors Mandate requiring federal employees of the executive agencies and contractors to be vaccinated. The president cannot require Congress to do this, but as the chief executive, he can require executive branch agencies’ employees and contractors to them to take the jab. He is using the Procurement Act, a federal law passed by Congress, which sets up requirements for contractors to contract with the federal government. Agencies can create rules for procurement and have been directed to draft the language for this mandate by September 24.

Lawrence Gostin, Professor of Global Health Law at Georgetown University Law Center, said the following on this requirement: "The president has clear power to ensure a safe federal workforce. The Equal Employment Opportunity Commission and the Department of Justice have both said that it's lawful to do it, and there are federal courts that have upheld other workforce mandates.”

Currently, none of these orders could be challenged in Idaho state court. The best thing Idaho legislators can do is to pass a law so Idahoans can litigate in state court instead of federal in hopes of getting an injunction or stay. This would give citizens a tool to delay. It would also be a tool that businesses could use to avoid being bullied into complying.

There is currently no law to protect Idaho citizens, employers or employees, from any of these three mandates.

That means that to challenge any of these mandates, you would have to do it in the federal courts. Religious exemptions may be allowed but likely will not be easy to obtain. The Idaho legislature must stand up to this federal overreach and exercise its 10th Amendment jurisdiction under the Constitution.

Time is running out. So many citizens are being pushed into a corner, coerced into making critical short- and long-term health decisions with wildly conflicting information while simultaneously facing imminent job loss. The mandates are having a broad ripple effect into other parts of society with many negative consequences.

Meanwhile many Idaho legislators sit idle saying “we need to take a wait-and-see attitude and see how this new mandate plays out ...” Elections have consequences. Are you sharing your personal stories with your legislators? Hopefully your elected legislators will stand strong for you and show up in Boise immediately, ready to tackle this serious issue.

Idaho can and must do better for its citizens!

It is the duty of the state legislature to protect the individual rights of citizens. I plan to continue to actively encourage all Idaho Legislators who have taken the oath to show up this Wednesday at the Capitol and do the work necessary to protect citizen's rights.

Questions or Comments? Send us an email!

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