Joe Biden

Senate Votes to Block Biden Vaccine Mandate, Which Has Already Hit Roadblocks in Court

Al Drago | Bloomberg | Getty Images
  • The Senate voted Wednesday to block President Joe Biden's vaccine mandate on private employers.
  • The measure will have little practical effect, as it is unlikely to become law and the mandate has stalled in federal court.
  • The vote comes as the highly mutated omicron Covid variant gains hold around the country.

The Senate voted Wednesday to block President Joe Biden's vaccine mandate on private employers in the latest blow to his push to flex federal power to boost vaccinations in the U.S.

The measure to block the mandate heads to the Democratic-held House. It faces a tougher path to passage in the House, and the Biden administration has threatened a veto if it reaches the president's desk.

Because the mandate itself has a slim chance of becoming law, the measure to overturn it will have little practical effect. A federal court has already halted the administration's Covid vaccination and testing requirements for private businesses with 100 or more employees.

Even so, the vote underscores resistance to the Biden policy even among Democrats who represent red states. It reflects the White House's struggle to increase U.S. vaccinations and booster shots as the highly mutated omicron variant — which has shown the potential to evade protection offered by a two-dose vaccine regimen — starts to gain a foothold around the country.

The Senate approved the measure in a 52-48 vote. Sens. Joe Manchin, D-W.V., and Jon Tester, D-Mont., joined every Republican in supporting it. It needed only a simple majority to pass under the Congressional Review Act, a process that allows Congress to overturn rules made by federal agencies.

Republicans who introduced the plan to overturn the mandate argued it would damage small businesses as they try to navigate the pandemic.

"That is the heavy hand of government, that is overreach," Sen. Mike Braun, R-Ind., said on Wednesday.

Senate Majority Leader Chuck Schumer denounced the plan on Wednesday. He said blocking the mandate would damage U.S. efforts to contain the pandemic as a potentially more infectious variant gains hold.

"The worst thing we can do is to tie our own hands behind our backs, and let these new variants spread and grow and new ones after omicron and so many others. But that is what Republican-pushed, anti-vaccines would do," he said.

The vast majority of Democrats in the House will oppose the measure and it may not see a vote. Even so, if it came to a vote only four House Democrats would need to defect for it to get through both chambers.

The White House Office of Management and Budget said on Tuesday that it will strongly encourage Biden to veto the Senate legislation if it passes.

"At a time when COVID is on the rise, a new variant is on the loose, and more Americans are choosing to be vaccinated, it makes no sense for Congress to reverse this much-needed protection of our workforce," OMB said in a statement. 

The U.S. Court of Appeals for the 5th Circuit forced the Biden administration to halt implementation and enforcement of its vaccination and testing requirements last month. Judge Kurt D. Engelhardt, in an opinion for a three-judge panel, said the Biden policy was "fatally flawed" and "raised serious constitutional concerns." 

The policy required businesses with 100 or more employees to make sure their staff is vaccinated by Jan. 4, or submit a negative Covid test weekly to enter the workplace. Unvaccinated workers were supposed to start wearing facemasks indoors on Dec. 5.

More than two dozen lawsuits have been filed in federal courts across the country challenging  requirements. Republican attorneys general, private businesses and national industry groups such as the National Retail Federation, American Trucking Associations and National Federation of Independent Business want the requirements overturned. Labor unions have sued to expand the policy to cover smaller businesses and protect more employees.

The Justice Department asked a multidistrict litigation panel last month to consolidate the litigation in a single court through random selection. The consolidated case was transferred to the U.S Court of Appeals for the Sixth Circuit in Ohio, which has a Republican-appointed majority. 

The Biden administration asked the Sixth Circuit to reinstate the vaccination and testing requirements, warning that delaying the policy would cost lives and increase hospitalizations. The Justice Department filed the motion on Nov. 23, only days before the heavily mutated omicron variant came to the world's attention. 

"Simply put, delaying the Standard would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous expenses. That is a confluence of harms of the highest order," the Justice Department argued in its motion.

The case will likely end up before the Supreme Court, according to legal experts. 

After omicron emerged, the White House asked businesses to voluntarily move forward with the requirements as the litigation plays out in court to help combat a Covid winter surge. 

Dozens of groups representing health care professionals, in a joint statement last month, also asked the business community to implement the requirements. The coalition included the American Medical Association, the American College of Physicians, the American Academy of Pediatrics, the American College of Emergency Physicians and the National League for Nursing.

The Occupational Safety and Health Administration, which polices workplace safety for the Labor Department, issued the requirements under emergency authority established by Congress. OSHA can shortcut the normal rulemaking process, which can take years, if the Labor secretary finds a new safety standard is necessary to protect workers from a grave danger.

The White House has repeatedly said Covid clearly poses such a danger, pointing to the devastating death toll from the pandemic and the high rates of infection in counties across the U.S. 

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