Durham attorney, Duke lecturer details what legal opposition Biden may face over employer vaccine mandates

Coronavirus

DURHAM, N.C. (WNCN) – President Joe Biden invited any legal challenges to a mandate announced Thursday for large employers to require the COVID-19 vaccine.

“Have at it. Look, I am so disappointed that, particularly some Republican governors, have been so cavalier with the health of these kids, so cavalier with the health of their communities,” Biden said. “This is, this is, we’re playing for real here, This isn’t a game, and I don’t know of any scientists out there in this field that don’t think it makes considerable sense to do the six things I suggested.”

The president was visiting a school in Washington D.C. The Bidens toured Brookland Middle School and delivered remarks about keeping schools and students safe during the COVID 19 pandemic.

Labor attorney and Duke University law lecturer Dan Bowling said the Biden administration can expect legal challenges from private companies.

“The 100- to 250-employee businesses, a lot of time, tend to be self-owned businesses by self-made men and women. I’ve talked to two or three in the last 12 hours who each one have said I have no intention of doing this,” he said.

Bowling said the first legal question is whether it is outside the authority of the executive branch.

“This wasn’t Congress passing a law. This was President Biden and his team developing it and ordering administrative action to take place,” Blowling said. “So, I think a lot of the earliest first round of lawsuits that have been immediately filed have been on constitutional grounds.”

More than 14 million Americans are members of a labor union. That also creates its own legal challenge.

“You can not force, in the middle of the contract, you cannot issue a sweeping new work rule like this or an employment requirement carrying disciplinary or financial penalties with it without negotiating it with your union first,” Bowling said.

So, what about the 1905 law that allowed Massachusetts to require residents to get a smallpox vaccine or face a fine? It survived legal challenges and helped Indiana University uphold its recent student COVID-19 vaccination requirement.

Bowling said it may not apply to the president’s decision. He does believe that even with court challenges, this may accomplish much of what Biden wants. With so many large companies already requiring a shot, it could be enough to encourage others to just follow their steps.

“Maybe, in the end, the most effective effect of this regulation will be to help push those on the middle of the fence over to vaccine,s whatever that percentage is,” he said.

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