SCOTUS to hear Trosclair’s challenge to Biden vaccine mandate on Friday

Brandon Trosclair

Brandon Trosclair is in Washington DC this week, preparing for his day in court on Friday.  That’s when the United States Supreme Court has scheduled arguments in consolidated cases challenging President Biden’s attempted imposition of COVID vaccine mandates on all businesses with 100 or more employees.  Last week Trosclair and his counsel sat down with USA Today’s John Fritze, resulting in an article published yesterday.

Excerpted from that piece, entitled Biden COVID vaccine mandates may face pushback from Supreme Court:

Brandon Trosclair saw the legal fight taking shape months ago, back when President Joe Biden first outlined the idea of requiring millions of American workers to get a COVID-19 vaccine or submit to weekly testing.

The Louisiana businessman, who employs nearly 500 people at more than a dozen grocery stores, was among the first to sue in federal court – one of a series of challenges to the vaccine-or-testing mandate that some experts say has raised the most important legal question posed during the pandemic.  The Supreme Court is set to hear oral arguments in challenges to two federal vaccine requirements on Friday at a time when the omicron variant is causing infections to soar.

“It’s none of my business as an employer to get into the medical decisions of my employees,” said Trosclair, a second-generation grocer and former Republican candidate for state legislative office. “I just thought it was incredibly wrong to put that burden on the employer as well as…on the employee.”

Legal experts predict Trosclair’s argument will resonate with the high court, where conservatives now enjoy a 6-3 advantage. While the justices have repeatedly turned away challenges to state and local COVID-19 vaccine mandates, the Biden administration is all but guaranteed to face a tougher reception.

The Biden Administration has charged Occupational Safety and Health Administration (OSHA) with implementation of the mandate, predicated upon its authority to regulate “substances or agents determined to be toxic or physically harmful.”  The mandate, which is set to take effect on February 9, would apply to approximately two-thirds of the country’s private workforce.  Companies in violation of the mandate, if deemed valid by SCOTUS, could be fined nearly $14,000 per violation.

USA Today’s Fritze continued the analysis:

If the Biden administration convinces the court the federal government has a role to play in vaccine-or-testing requirements then the debate will likely turn to a second critical question: Whether Congress gave power to federal agencies to act on their own.

The Occupational Safety and Health Act of 1970 allows OSHA to craft an emergency rule, or emergency temporary standard, when a “grave danger” exists that could expose workers to “substances or agents determined to be toxic or physically harmful or from new hazards.” Much of the legal wrangling in the case has involved whether the law allows OSHA to regulate a virus as a dangerous workplace substance.

The litigation raises fundamental questions about an agency’s power that could have implications far beyond the pandemic, experts say. Some conservatives on the court, such as Associate Justice Clarence Thomas, have long opposed allowing federal agencies to promulgate regulations without specific authority from Congress.

A ruling in the vaccine cases, in other words, could affect other agencies’ ability to issue regulations on the environment, say, or telecommunications.

Daniel Suhr of Liberty Justice Center represents Brandon Trosclair and other plaintiffs.  Suhr argued that the eviction moratorium case is the “model” (and, hopefully, precedent) for the present litigation.  The vaccine policies, Suhr said, have “far more economic and everyday impact than the eviction moratorium.”