Pence group files SCOTUS brief opposing Biden vaccine mandate

Former Vice President Mike Pence on Monday announced his advocacy group has filed an amicus brief urging the Supreme Court to reject the Biden administration’s attempt to require large businesses to mandate the COVID-19 vaccine for its workers or require frequent testing.

Pence filed the brief, which was shared with The Hill, through his political advocacy group Advancing American Freedom. In the document, Pence’s organization argues the Biden White House’s mandate is unconstitutional and would exceed previous examples of the Occupational Safety and Health Administration’s (OSHA) use of emergency authority.

“America is about freedom and the ability to make the best decision for your family or business, and Joe Biden’s vaccine mandate must be stopped in its tracks in order to preserve freedom, protect American livelihoods and businesses, and to safeguard our constitution,” Pence said in a statement.

The brief outlines nine previous cases where OSHA used an emergency temporary standard to expedite the standard rule-making process. Pence’s brief argued there is a distinction in that the previous instances sought to regulate workplace dangers like asbestos or other chemicals that threatened workers’ safety, not require employees to get vaccinated or get some other medical treatment.

The brief from Pence’s group argues that the OSHA rule requiring vaccinations suggests “the Biden Administration is not truly seeking to mitigate workplace hazards through the [emergency temporary standard], but rather is attempting to use OSHA to accomplish an end that it has been unable to persuade Congress to support: the mandatory vaccination of the American public.”

The Biden White House has said it does not support making the COVID-19 vaccine mandatory for the public.

Pence’s group has previously filed amicus briefs with the Supreme Court outlining positions on prominent cases on abortion and school choice. The former vice president is the latest conservative politician to weigh in against the Biden administration’s push for large businesses to require vaccinations or regular testing for employees as part of an aggressive strategy to end the pandemic.

The workplace mandate is scheduled to take effect this month and could affect an estimated 84 million employees. It generally requires larger businesses with more than 100 employees to adopt written policies requiring workers to be vaccinated against COVID-19 or wear masks and undergo regular testing. 

The Biden administration on Thursday urged the Supreme Court to leave intact a workplace vaccine-or-test mandate as public health officials contend with the surging COVID-19 pandemic.

DOJ lawyers argued that the 1970 law that established the Occupational Safety and Health Administration (OSHA) makes plain that the policy “falls squarely within OSHA’s statutory authority.”

But conservatives, including several interest groups and governors, have argued in court that the OSHA rule is an example of government overreach and that the White House should not have the power to require certain groups to get vaccinated against COVID-19, which has spread rapidly in recent weeks thanks to the highly contagious omicron variant.