What can Idaho do to challenge Biden’s vaccine mandates? Legislators explore options

BOISE (Idaho Statesman) – Idaho legislators in the House and Senate are hoping to find common ground to do one thing that unites the Republican Party: Fight President Biden’s COVID-19 vaccine mandates.

The Idaho Legislature’s Committee on Federalism met all day Wednesday for a public hearing and to explore the legal actions lawmakers could take against the federal government. Members took no action this week but will meet again Tuesday and on Oct. 4, when they could explore legislation.

Biden announced earlier this month plans to mandate COVID-19 vaccines among federal workers and federal contractors. He also directed the Occupational Safety and Health Administration to craft a rule, mandating that employees of businesses with 100 or more workers either get the COVID-19 vaccine or undergo weekly testing.

For the past several months, senators and House Republican leaders have staved off calls to reconvene over the vaccine rules of private businesses. But senators on Wednesday said they opposed mandates from the federal government and are more open to action against Biden.

“I think we need to stand up for ourselves and say, ‘No, that’s not going to happen,’ ” said Sen. Dan Johnson, R-Lewiston, a committee member.

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Johnson told the Idaho Statesman on Wednesday that he thought the decision on vaccine mandates should rest with states. He said he still didn’t think states should be “telling the employers what to do” by banning businesses from implementing those policies.

Senate Assistant Majority Leader Steve Vick, R-Dalton Gardens, co-chairs the Committee on Federalism. He told the Statesman on Wednesday that the committee is trying to figure out whether an outright state ban on mandates would even make a difference, given the upcoming federal mandates.

“We need to find the most effective way to protect Idaho citizens from these federal mandates,” Vick said.

Similarly, House Speaker Scott Bedke, R-Oakley, who’s running for lieutenant governor, has vowed to fight Biden’s plan, but opposed banning business mandates.

In a campaign release Wednesday, he said “federal overreach” was the reason he joined the Legislature.

“The federal vaccination mandate announced by the Biden administration last week was only the first volley in what appears to be an ongoing assault on how states manage themselves,” Bedke said in his release Wednesday.

But he’s consistently said that he wants consensus with the majority of the House and Senate before they reconvene to take up the issue.

STILL ‘A LOT OF UNKNOWN’ ON LEGAL MERITS OF BIDEN’S PLAN

Jon Jukuri, a federal labor policy adviser for the National Conference of State Legislatures, told the committee that the state’s best chance is to challenge OSHA’s rule on larger businesses — but not executive orders on federal employees or contractors.

Biden intends to use the Emergency Temporary Standard to implement those policies. The last time the federal government used the ETS was in 1983 to address workers’ exposure to asbestos. The process to draft an ETS will take several weeks, Jukuri said.

OSHA likely will need to show that COVID-19 in the workplace imposes a “grave danger” to employees, Jukuri said Wednesday.

Chief Deputy Attorney General Brian Kane told lawmakers that it’s challenging to analyze the legal merits of Biden’s plan before the ETS is even drafted.

“There’s a lot of unknown here,” Kane told the committee. “Really, this is a bunch of guesswork at this point in time.”

Attorney General Lawrence Wasden, Gov. Brad Little, Senate President Pro Tem Chuck Winder and Bedke sent a joint letter to the White House earlier this month, asking Biden to reconsider and outlining the legal questions around his plan. But the letter was markedly different than another response from 24 Republican attorneys general who threatened a lawsuit.

Typically, vaccine mandates have been left under a state’s jurisdiction in past legal cases, Kane said. And another question is whether Congress intended to grant OSHA sweeping authority, beyond emergency regulations by industry, he added.

Another attorney, Chris Troupis, told the committee that he believed Idaho had a strong case, in part because of the U.S. Supreme Court’s makeup. He also told legislators to consider a law that would make vaccine status a private medical record, which would allow workers to refuse that information to employers.

Biden’s announcement also has implications for federal funding. Included in his plan would be for all Medicare- and Medicaid-certified facilities, such as nursing homes, to require COVID-19 vaccines of staff. Those that don’t comply would need to forgo federal reimbursement.

Rep. Wendy Horman, R-Idaho Falls, a committee member, pointed out the loss of federal funding could also affect schools.

“I think the tentacles of this mandate go much broader than any of us realize right now,” Horman said.

Of the 29 who spoke at the public hearing Wednesday, 23 opposed vaccine mandates and urged legislators to fight them. One speaker said that he was immunocompromised and unable to get the vaccine, but that his employer rejected his medical exemption.

Victoria Stump — of Take a Stand Now, a group against vaccine mandates — said she was an emergency room nurse in Nampa. She said she quit her dream job in August after health care systems announced plans to implement COVID-19 vaccine mandates.

“When is enough enough?” Stump said. “This has to be our line in the sand.”