Sen. Jon Tester (D-Mont.) has announced that he will join Sen. Joe Manchin (D-W.Va.) and all 50 Senate Republicans to strike down President Joe Biden’s private sector vaccine mandate.
“I’m not crazy about mandates,” Tester said on Tuesday, though he added that he supports mandates aimed specifically at health care workers and military servicemen.
Sen. Jon Tester (D-Mont.) at a Senate hearing in Washington on Sept. 27, 2017. (Samira Bouaou/The Epoch Times)
Tester, a moderate Democrat in the upper chamber, is the second Democrat to announce that he will join Republicans in striking down the mandate using a 1990s oversight law.
Sen. Joe Manchin announced his decision on Dec. 3, saying that he would support Republicans in their effort to strike down the private sector mandate.
Manchin explained the decision in a statement, “I have personally had both vaccine doses and a booster shot and I continue to urge every West Virginian to get vaccinated themselves.” Still, the senator emphasized his opposition to any effort to impose vaccination on private sector employers and employees.
“Let me be clear: I do not support any government vaccine mandate on private businesses,” said Manchin. “That’s why I have cosponsored and will strongly support a bill to overturn the federal government vaccine mandate for private businesses.”
“I have long said we should incentivize, not penalize, private employers whose responsibility it is to protect their employees from COVID-19,” Manchin said.
Sen. Joe Manchin (D-W.Va.) speaks during a hearing at the Dirksen Senate Office building in Washington on June 9, 2021. (Stefani Reynolds/Pool via Reuters)
Manchin and Tester joining Republicans comes in a concerted effort to overturn the private sector mandate through a congressional power formulated and made law under President Bill Clinton.
All Republicans in the upper chamber joined with Sen. Mike Braun (R-Ind.) and Senate Minority Leader Mitch McConnell (R-Ky.) on Nov. 18 to challenge the measure under the Congressional Review Act (CRA).
The CRA, approved in the 1990s under Speaker of the House Newt Gingrich, allows Congress to review and, if necessary, to overturn new federal regulations put into place by federal administrations such as the Occupational Safety and Health Administration (OSHA). If a rule is overturned under this procedure, federal administrations are forbidden from issuing the same or a substantially similar rule.
Under the rules of its charter, a CRA motion can be passed by a simple majority, without the risk of a filibuster.
Biden introduced his sweeping vaccine mandate in September, telling the nation that “our patience is wearing thin” with the millions of Americans who have chosen to not get vaccinated against the CCP (Chinese Communist Party) virus.
The mandates would apply to all federal employees, including military personnel and federal contractors. They would also extend into the private sector, requiring that all firms with 100 employees or more mandate vaccination or weekly testing for the virus.
To enact the mandates, Biden asked OSHA to declare an emergency temporary standard. In the past, such standards have been used to guard employees against dangerous chemicals or other similar toxins.
OSHA said in a statement to The Epoch Times that the emergency temporary standard would “ensure [that a firm’s] workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.”
President Joe Biden is seen in Washington during a briefing on Sept. 24, 2021. (Evelyn Hockstein/Reuters)
In total, Biden’s mandate would extend to roughly 100 million Americans, nearly a third of all U.S. citizens.
However, the legal maneuvering Biden used to reach into the private sector is subject to a litany of rules and restrictions that could cause the OSHA rule to be shut down.
Foremost among these is the CRA motion, which would not only overturn OSHA’s temporary emergency standard but would prohibit the imposition of another substantially similar rule.
The mandate also faces challenges in the court system with the conservative-leaning 5th Circuit Court challenging Biden’s authority over the health decisions of private-sector employees and employers.
Referencing Biden’s “thinning patience,” 5th Circuit Court of Appeals Judge Kurt D. Engelhardt wrote that to protect “our constitutional structure … the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials”—must be upheld.
Tester’s decision to join Manchin and the GOP comes amid increasing legal and state-level challenges to Biden’s diktat.
A second defection is also a concerning sign to the White House that Democrats in Congress are continuing to break with Biden, a trend that began with Biden’s controversial Afghanistan withdrawal and that has intensified recently as more Democrats have spoken against Biden’s energy policies, runaway inflation, and spending plans.
For Republicans, this second defection could signal that moderates are more critical of the mandate than Biden may have hoped, and the defection of two senators could encourage a handful of House moderates to follow suit.
In the thinly-held House, Republicans will need the support of five Democrats and every Republican to overturn the rule under the CRA, but Tester’s defection makes it all but certain that the resolution will pass the upper chamber.