The Buckeye Institute Files Motion for Emergency Stay to Halt Biden’s Unconstitutional Vaccine Mandate on Private Employers

Nov 05, 2021

Columbus, OH – The Buckeye Institute—following its original challenge (filed Thursday, November 4) against the Department of Labor’s Occupational Safety and Health Administration (OSHA)—filed a Motion for Emergency Stay on Friday asking the U.S. Court of Appeals for the Sixth Circuit to immediately halt the federal vaccine mandate.

The Buckeye Institute’s emergency motion argues that the mandate—one of the most far-reaching and invasive rules ever promulgated by the federal government—exceeds OSHA’s authority under the Occupational Safety and Health Act, violates the major questions doctrine, was promulgated in violation of the Congressional Review Act, and impermissibly trammels on numerous constitutional principles including the non-delegation doctrine and limitations on federal power under the Commerce Clause.

“The OSHA vaccine mandate is not about workplace safety, but is a rather transparent attempt by the Biden Administration to work around statutory and constitutional limitations on federal power in order to impose requirements on individuals—something OSHA lacks the power to do,” said Robert Alt, president and chief executive officer of The Buckeye Institute, who is counsel of record representing Phillips Manufacturing and Sixarp LLC. “In addition to highlighting the numerous and fatal legal problems with the federal vaccine mandate, The Buckeye Institute’s clients demonstrate the unnecessary economic damage it would cause not only to a struggling U.S. economy, but also to the Midwestern communities where these companies are located and to the lives and families of the hardworking men and women who work in them.”

Buckeye’s first of two clients in the case, Phillips Manufacturing & Tower Company, has invested significant resources in providing antibody testing for its employees. The results of these tests demonstrate that a significant number of the company’s unvaccinated employees already have natural immunity, which numerous studies show is stronger and longer lasting than vaccinated immunity. Even so, the federal vaccine mandate would require Phillips to terminate these productive and trained employees if they refuse either to be vaccinated or to engage in weekly testing. Internal company surveys reveal that a significant number of employees would leave Phillips Manufacturing & Tower Company if they were forced to comply with President Biden’s vaccine mandate. This reality in combination with a current worker shortage would financially devastate the company, the community, and would cripple the supply chain of steel tubing that is vital to employers in other industries. The vaccine mandate would also impact the company’s ability to fulfill current contracts, leading to a loss of customers to foreign-based suppliers, which would result in significant contractual penalties if Phillips is unable to fill orders due to worker shortages. The mandate, if implemented, would cost Phillips Manufacturing nearly $1 million annually.

As lead attorney in the case Robert Alt wrote recently in The Wall Street Journal, “[O]ur nation’s Founders understood that much mischief can be done under the theory of being ‘for your own good’ and provided limits to government authorities accordingly. Even during a pandemic, the Biden administration would do well to respect those limits.”

Buckeye’s second of two clients in the case, Sixarp, employs more than 600 people at its Grand Rapids packaging facility, and dozens of employees in Ohio. Sixarp provides secondary packaging operations for products including over-the-counter and prescription pharmaceuticals. Sixarp is a critical component of the U.S. supply chain that is already facing worker shortages, which of course the vaccine mandate would exacerbate. With the holiday season fast approaching, complying with the mandate would have a devastatingly negative impact on production, not to mention the effect it would have on employees who—many due to sincerely held religious beliefs—would be forced to either quit their jobs or violate their conscience.

Buckeye’s co-counsel in the case are Patrick Strawbridge, Jeffrey M. Harris, and Daniel Shapiro at Consovoy McCarthy PLLC.

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