BOISE, Idaho — Editor's Note: This article was originally published by the Idaho Press.
Idaho lawmakers, who appear poised to challenge President Joe Biden’s new rules concerning COVID-19 vaccinations and testing for public and private employees, on Wednesday heard opinions from legal experts and the public on Biden’s controversial new plan to battle the coronavirus.
The Idaho Legislature’s interim Committee on Federalism convened at the Capitol, where legal experts said challenges to Biden’s soon-to-be-implemented rules likely will be settled in court.
This month, Biden issued executive orders requiring that all federal employees and contractors receive COVID-19 vaccines. The president also announced that he would be directing the U.S. Department of Labor to require that employers with more than 100 workers mandate vaccinations or weekly COVID-19 testing for their employees.
The latter would be implemented through an Emergency Temporary Standard. That’s a rarely used ability of the Occupational Safety and Health Administration (OSHA) to mandate new rules without having to go through the normal rule-making process, which typically includes public input and takes years to complete.
“I can tell you with some degree of confidence that it seems destined for the courtroom, even though it has yet to be published,” said Jon Jukuri, federal affairs advisor for the National Conference of State Legislatures. “What we know about its intent has already caused two dozen states to begin considering legal action.”
One of those states is Idaho. After Biden announced the proposal for private employers, Idaho Gov. Brad Little said he and Attorney General Lawrence Wasden are exploring legal action against the plan, which the governor called “unprecedented government overreach.”
Chief Deputy Attorney General Brian Kane on Wednesday explained to lawmakers the strengths and vulnerabilities of Biden’s plan. On the one hand, the state has little influence on federal mandates for federal employees and contractors, Kane said. However, courts have traditionally given states authority over vaccine mandates, and OSHA, which typically issues safety regulations by industry, likely will have to meet a high bar to justify new rules for all industries.
Kane pointed to Asbestos Information Association v. OSHA, a 1984 case in which a federal court ruled that an Emergency Temporary Standard is an “extraordinary power used in limited situations in which a grave danger exists.” In other words, the standard “has to be somewhat of a last resort to address a grave danger and should extend no further than necessary to abate that danger,” Kane said.
A court will take “a hard look” at analyses of risks to determine whether it meets the standard of “grave danger,” Kane said.
Rep. Chris Mathias, D-Boise, suggested 101 workers in a meat-packing plant are “uniquely vulnerable to the spread of Covid,” referencing a Sept. 17 letter from Little, Wasden and legislative leaders that argues that OSHA regulates hazards “unique to a workplace,” which does not include the coronavirus.
Kane responded that he has not been in a meat-packing plant and doesn’t know how they’re situated. He reiterated that in question is whether OSHA has “this expansive of authority.”
“It’s most effective when it regulates industry by industry,” he said.
The legislative committee also heard from a few dozen Idaho citizens, the majority of whom said they oppose Biden’s plan. Much of the testimony opposed vaccine mandates and focused on the Department of Labor directive concerning private employers, despite the fact that Biden’s proposal would allow employees to test weekly for the virus rather than get the vaccine.
Jen Graves of Nampa, a spokesperson for Take a Stand Now, a group that opposes vaccine mandates for health care workers, chided lawmakers for not reconvening the Legislature to pass bills barring vaccine mandates.
“This needed to be done sooner and this committee hearing is not enough,” Graves said. “The President of the United States of America has declared war on freedom … Our elected officials, many of you, have turned a deaf ear to our pleas.”
Last week, a small group of GOP lawmakers gathered at the Statehouse, attempting to convene the House to oppose vaccine mandates, but they could not muster a quorum of the House of Representatives. Even if they did, the House is currently in recess at the call of the speaker, so it would be up to Speaker Scott Bedke, R-Oakley, to reconvene lawmakers, not to a small group of House members.
Much of Wednesday’s testimony included misinformation about COVID-19, which went unchallenged by Republican committee members. Lorna Mitson of Garden City urged lawmakers to take the “strongest possible action” against Biden’s plan and added that after being in close proximity to vaccinated people she became sick.
“I feel threatened by the vaccinated,” she said.
According to the Centers for Disease Control and Prevention (CDC), the phenomenon known as “vaccine shedding” — when vaccine components are discharged in or outside of the body — can only occur when a vaccine contains a weakened version of the virus. None of the vaccines authorized for use in the U.S., along with the COVID-19 vaccines, contain a live virus.
Lyle Johnstone of Jerome County said vaccine mandates are unconstitutional and violate “unalienable rights.” He also said vaccines were effective against COVID-19 but not the Delta variant. In fact, vaccines are effective at protecting against the Delta variant and preventing serious illness, hospitalization and death, according to the CDC.
Many people suggested that people who have had COVID-19 should be exempt from vaccination due to “natural immunity.” Mathias, one of two Democrats on the committee, noted that those who have had COVID-19 are not immune from contracting the virus again.
About half a dozen people testified in favor of vaccine mandates and/or weekly testing.
“We have never felt so offended by what our state is doing,” said Kathy Dawes, a 48-year resident of Idaho, who spoke on behalf of herself and her husband. “We are very disturbed that the governor is pursuing legal action against President Biden’s plan to get this pandemic under control … It gives people the choice of either getting the vaccine or getting tested, which is a very simple matter … Idaho is experiencing, right now, Crisis Standards of Care, and … we have stressed out our hospitals and our patients, who are needlessly there for something that is totally preventable.”
Committee Co-chairman and Senate Assistant Majority Leader Steve Vick, R-Dalton Gardens, asked Dawes whether she is concerned with one person determining health policies for the country, referring to Biden, and whether she would feel just as comfortable if the order had been issued by former President Donald Trump’s administration.
Dawes said, the plan is not just the work of one person, and, “If it would help save lives, yes,” she would support a similar policy proposed by Trump.
“There’s no doubt that this would help save lives,” she said.
The Committee on Federalism plans to meet again at 9 a.m. on Oct. 4 at the Lincoln Auditorium in the Idaho Capitol.
Ryan Suppe is the Boise City Hall and Treasure Valley business reporter for the Idaho Press. Contact him at 208-344-2055 (ext. 3038). Follow him on Twitter @salsuppe.
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