Senate Republicans to formally challenge Biden OSHA vaccine mandate

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EXCLUSIVE: All 50 Senate Republicans on Wednesday morning are expected to formally challenge the Biden administration’s vaccine rule for private businesses under the Congressional Review Act – the official process for Congress to eliminate an executive branch rule.

GOP Sen. Mike Braun of Indiana will lead all 49 of his Senate Republican colleagues, including Senate Minority Leader Mitch McConnell, in moving to strike down the Biden administration’s rule which mandates employees at private businesses with 100 workers or more to be fully vaccinated against COVID-19 by Jan. 4 or be subject to weekly testing and mask-wearing.

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"President Biden’s vaccine mandate is an unconstitutional invasion of what should be a personal medical decision for every American and an affront to the rights of 80 million American workers," Braun told Fox News. "Today, my Republican colleagues and I will formally challenge this federal overreach, and I urge the Senate to vote in favor of this disapproval resolution when it comes to the Floor for a filibuster-proof, simple-majority vote in early December."

The Department of Labor’s Occupational Safety and Health Administration (OSHA) COVID-19 vaccine rule, which is set to impact roughly 84 million employees, was formally introduced earlier this month. The rule also requires that employers provide paid time for employees to get vaccines and mandates that all unvaccinated employees wear a face mask in the workplace.

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Businesses that fail to comply with the mandate could face fines reaching as much as $14,000 per violation, with the potential for multiple citations. The OSHA rule will also "preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing," the White House said.

Braun, the top Republican on the Senate Subcommittee on Employment and Workplace Safety, which has jurisdiction over OSHA, slammed the Biden administration for "heavy-handed government."

The Congressional Review Act (CRA) can be used by Congress to overturn certain federal agency regulations and actions through a joint resolution of disapproval. If a CRA joint resolution of disapproval is approved by both houses of Congress and signed by the president, or if Congress successfully overrides a presidential veto, the rule at issue is invalidated.

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The formal mandate was transmitted into the Federal Registry and to the Senate on Nov. 16, beginning a "20 day clock," according to GOP aides, and setting the stage for a Senate floor vote as early as December.

During that 20-day period, the disapproval is reviewed in the Senate Health, Education, Labor and Pensions (HELP) Committee. At the end of the 20 days, the formal disapproval will be eligible for a vote on the Senate floor — a vote that Braun will be responsible for scheduling.

With support from all 50 Republican senators, a GOP aide told Fox News that "just one Democratic defection" would pass the disapproval resolution in the Senate.

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"If this level of support holds in the House, it would force President Biden to veto a disapproval resolution for his mandate that has already been under siege in the courts and the court of public opinion," the aide told Fox News. "As President Biden tries to pass ‘transformational’ change through reconciliation with a simple majority vote, it would force him to veto a simple majority disapproval of his unconstitutional vaccine mandate for businesses."

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Braun is joined by McConnell, Sens. John Thune, John Barrasso, Roy Blunt, Joni Ernst, Rick Scott, Marsha Blackburn, John Boozman, Richard Burr, Shelley Moore Capito, Bill Cassidy, Susan Collins, John Cornyn, Tom Cotton, Kevin Cramer, Mike Carpo, Ted Cruz, Steve Daines, Deb Fischer, Lindsey Graham, Chuck Grassley, Bill Hagerty, Josh Hawley, John Hoeven, Cindy Hyde-Smith, Jim Inhofe, Ron Johnson, John Kennedy, James Lankford, Mike Lee, Cynthia Lummis, Roger Marshall, Jerry Moran, Lisa Murkowski, Rand Paul, Rob Portman, Jim Risch, Mitt Romney, Mike Rounds, Marco Rubio, Ben Sasse, Tim Scott, Richard Shelby, Dan Sullivan, Thom Tillis, Pat Toomey, Tommy Tuberville, Roger Wicker and Todd Young.

"Republicans are united against President Biden’s vaccine mandate for businesses, but this federal overreach is not a partisan issue, and the mass firings and worsening labor shortages that will result from this mandate are affecting Americans in all 50 states," Braun told Fox News. "I encourage Americans to make their voice heard to their representatives on this issue, and we welcome any Democratic member of the Senate to join us in overturning this unconstitutional mandate causing turmoil across the country." 

The OSHA rule stems from Biden’s vaccine mandate he announced in September, which extended to 80 million private sector workers, and additional mandates for employees of the federal government and contractors.

The mandate for private sector employees requires them to be vaccinated or produce "at-least-weekly" negative COVID-19 test results before coming to work. The federal employee and contractor mandate does not include the option of weekly testing rather than taking a vaccine.

Sen. Mike Braun. R-Ind., speaks during a Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies hearing June 23, 2021, on Capitol Hill in Washington, D.C.  (Sarah Silbiger-Pool/Getty Images)

At this point, at least 27 courts filed challenges in a move to block the mandate. 

The Justice Department has said it will "vigorously defend" the OSHA guidelines, after a decision by the Fifth Circuit Court of Appeals last week to uphold a stay on the order. 

"This decision is just the beginning of the process for review of this important OSHA standard," a DOJ spokesperson told Fox News. "The Department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review."

Last week, the appeals court granted an emergency stay on the OSHA orders, blocking them from taking effect. 

The Biden administration countered the move and argued the court’s decision could "cost dozens or even hundreds of lives per day."

"With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming," lawyers representing the administration argued in court filings. 

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But Judge Kurt Engelhardt said concern over economic uncertainty and opposition to a sweeping vaccine mandate meant the stay was in the public’s best interest.

"The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions - even, or perhaps particularly, when those decisions frustrate government officials," he wrote.