Will Biden’s Mass Mandate Survive?

At 9:00 AM today, the ACLJ filed our reply brief to the United States Supreme Court opposing the Biden employer vaccine mandate. Although the penalties for violating this mandate don’t go into effect until February, as we’ve told you, employers must begin to comply tomorrow. Oral argument in the case will be held at the Supreme Court this Friday after the mandate is already in effect.

As we stated in our brief:

"The President recently conceded that “there is no federal solution” to the pandemic; rather, the problem should be “solved at the State level.” Nonetheless, the government incorrectly asserts a wide-ranging power to impose a vaccine mandate upon millions of Americans. No branch of the federal government, much less a federal agency, has ever attempted to impose a vaccine mandate."

This mandate has caused considerable confusion when it comes to what employers are actually required to do in order to avoid fines, which can amount to approximately $13,653 per violation. ACLJ Director of Policy Harry Hutchison explained how employers will have to begin complying with this vaccine mandate:

"The employer will have to make some affirmative steps toward . . . complying with the rule, and failure to do so could result in penalties. But I also think employers will also have to engage in some research because if they are going to allow employees to engage in testing, the question becomes are sufficient testing kits available? And I think the answer is no. Lastly, let me point out, as I understand it, Anthony Fauci has said that you may need to test up to three times in order to comply."

When Dr. Fauci was asked if the at home rapid tests even work to detect the COVID-19 Omicron variant, he responded:

"The answer is they do. I think the confusion is that rapid antigen tests have never been as sensitive as the PCR test. They’re very good when they are given sequentially. So, if you do them like maybe two or three times over a few day period, at the end of the day, they are as good as the PCR, but as a single test, they are not as sensitive."

Yet, the testing requirements are nearly impossible to comply with because of the lack of availability of tests and long lines to get tested. Like we’ve said before, President Biden has admitted “the problem should be solved at the State level.” Nonetheless, he continues to push for a federal vaccine mandate that would require employees to get vaccinated or get weekly testing to report back to their employers in order to do their jobs at their respective workplaces.

This is a logistical nightmare, and not one for the federal government to handle. There are already staff shortages around the world that are impacting the economy. With a federal power grab like this, it will only get worse. We will continue to update you on this case as oral argument will be held in a matter of days.

Today’s full Sekulow broadcast has even more analysis of President Biden’s federal vaccine mandate for employers.