Why This Lawsuit Over Vaccine Mandate Has ‘Good Chance’ of Reaching Supreme Court

The same day President Joe Biden announced details of his COVID-19 vaccine mandate for private employers, The Daily Wire filed a lawsuit to stop it. 

The Daily Wire, a media outlet founded by conservative commentator and author Ben Shapiro, filed the suit because the mandate on employers of 100 or more workers is unconstitutional, the organization said in a public statement Nov. 4. 

Alliance Defending Freedom, a Christian legal aid organization, is representing The Daily Wire in its fight to halt Biden’s vaccine mandate. Although it is risky for any lawyer to predict a case will go to the Supreme Court, Ryan Bangert, a senior attorney for Alliance Defending Freedom, says this case is different. 

“I think this one has a very good chance of going to the Supreme Court because of the stakes,” Bangert says. 

Bangert joins “The Daily Signal Podcast” to discuss the constitutionality of the vaccine mandate and what could be next for The Daily Wire’s lawsuit. 

We also cover these stories: 

• Homeland Security Secretary Alejandro Mayorkas testifies before the Senate Judiciary Committee on the ongoing crisis in which large numbers of illegal immigrants cross the southern border.
• Florida Gov. Ron DeSantis takes aim at the Biden administration and Washington’s ruling class.
• Californians are paying more at the gas pump than ever before.

Listen to the podcast below or read the lightly edited transcript.

Virginia Allen: As many of you-all know, the Biden administration has issued a mandate requiring all businesses with 100 employees or more, it’s requiring them to have their employees be vaccinated or tested weekly.

More than half of U.S. states, they have actually already filed lawsuits against this mandate. And there are a number of businesses that are doing the exact same thing, that are taking a stand and that are pushing back. And one of those is The Daily Wire.

Christian legal aid organization Alliance Defending Freedom is representing The Daily Wire in their case against this vaccine mandate. And joining us today is Alliance Defending Freedom Senior Counsel and Vice President of Legal Strategy Ryan Bangert.

Ryan, welcome back to “The Daily Signal Podcast.”

Ryan Bangert: Virginia, thank you so much for having us on.

Allen: Well, we are excited to talk about this lawsuit and break down what exactly this mandate is and why The Daily Wire is deciding to take legal action against it.

So Ryan, back in September, President [Joe] Biden announced that he was going to issue a vaccine mandate. And then on Nov. 4, the Occupational Safety and Health Administration, they issued the details of that mandate. So why did Ben Shapiro and his organization, The Daily Wire, why are they deciding to fight this vaccine mandate?

Bangert: Well, Virginia, you pointed out something very interesting right there. This was an announcement made by President Biden back in September and OSHA finally got around to issuing an emergency temporary standard in November. So apparently, the emergency wasn’t emergent enough to warrant them taking immediate action.

So, we are representing The Daily Wire and they’re challenging this mandate because it’s an example of tremendous government overreach, and not just government overreach, but overreach by the federal government in particular.

As all of us conservatives know the federal government is a government of limited enumerated powers. It does not have the police power. It does not have unlimited, uncapped power to govern our daily lives. It can only exercise power that’s found in the U.S. Constitution.

And nowhere in the Constitution, at least not that I’ve seen, not that Ben Shapiro’s seen, not that anyone at The Daily Wire’s seen, is there authority to force every American to undergo medical treatment with a vaccine that’s relatively new and novel to treat a novel coronavirus.

That is not something that is found anywhere in the text of the Constitution, nor in any reasonable interpretation thereof. So this is primarily a case about federal government overreach.

Allen: So Ryan, what exactly is in this lawsuit? What is The Daily Wire asking the courts to do?

Bangert: We’re asking the court to stay the mandate and enjoin it. Basically, put a stop to it in the simplest way possible. And in part to understand what we’re asking for, it’s helpful to know what exactly does this emergency temporary standard require? Well, it requires that all private employers with 100 or more employees demand and mandate that their employees get vaccinated. That’s the simplest way to put it.

There’s an exception if the employer institutes a policy that allows for testing and masking of unvaccinated employees testing every single week. Well, they can do that too.

But without question, no matter which side of the fence you’re on, mandatory vaccination or the testing and masking plus vaccination, you’ve got to gather records. You have to ensure that you have a roster of employees and their vaccination status on hand and you have to comply with these deadlines within 30 days. Some of them are actually 60 days out, but most of them are 30 days out, which means next month, or you could be subject to $ 14,000 fines per violation.

That’s a substantial penalty and if you do it intentionally, the fine could go up to $ 140,000. Even for businesses with a hundred employees, that’s a midsize business, that can be crippling, especially when you’re dealing with inflation. When you’re dealing with the economic situation we’re dealing with right now, that’s a pretty big ask for a medium-size business right now.

Allen: Yeah. And we know that that affects so many businesses all across the country, literally millions of workers. So many workers are facing that choice of, “OK, do I get the vaccine or risk losing my job?”

So when it comes to how this lawsuit is written, let’s say you-all, you have success, you win your case. What happens at The Daily Wire versus the rest of America? If the court rules in The Daily Wire’s favor, does that just mean that The Daily Wire isn’t forced to require their employees to be vaccinated or does that mean that that positive ruling applies to all Americans and is broader?

Bangert: I would argue that would apply to all Americans because we’re fighting for all Americans.

And I want to be clear about one thing, we’re not objecting to the vaccine as a vaccine. The Daily Wire, Jeremy Boreing, our clients have been very clear that the vaccine is a breakthrough, a medical breakthrough, and somewhat of a marvel of modern medicine.

Many of The Daily Wire employees have been vaccinated. They believe, however, that it is a personal choice. It’s a personal decision, one that the federal government has no role dictating to Americans.

So, this is not a matter of opposing a vaccine, the anti-vax, this is really a question of, what is the role of the federal government? So, I would argue, if we do get a stay, if we do get an injunction, that would apply to everyone, because I don’t see any way that they can be limited to just one employer.

In fact, as you may have already seen, the 5th U.S. Circuit Court of Appeals down in New Orleans issued a stay on Friday of last week, halting implementation of the mandate. Now, this circuit didn’t specifically say whether it’s nationwide in effect, but reading the order, I think it is. I think many people who’ve considered it carefully also believe that it has nationwide effect.

Allen: Yeah. Well, I’m glad you brought that up, because I was actually going to ask you that very question of, from the 5th Circuit’s ruling, they’ve put a pause. They actually said that the vaccine mandate is fatally flawed. So does that mean that we’re now in a pause moment across the country, that we won’t see things move forward with implementation of this requirement until the courts essentially decide, is this constitutional? Can we implement it? And I guess maybe there’s still a little bit of a question mark there of, does this extend to all businesses across America?

Bangert: Well, I think it does, but you also raise an important point and that is, what happens next? Well, the game’s afoot. This is a very interesting and unusual process that we’ve been thrust into with the emergency temporary standard because the rules governing the challenges to ETS—they call them ETS’s—the rules governing challenges are very specific and very arcane.

And one of the rules that applies to ETS challenges is, within 10 days after a challenge being filed, the challenges have to be filed not in the trial courts, but in the appellate courts, the circuit courts. So all these challenges are being brought all across the country in federal circuit courts.

We filed The Daily Wire’s challenge in the 6th Circuit, which is in Cincinnati. There’s also a challenge pending in Texas. Texas brought a challenge in the 5th Circuit, New Orleans. We’re involved in cases in the 8th Circuit in St. Louis and the 11th Circuit in Atlanta.

Well, the unions filed challenges in circuits that tend more liberal, and tend more progressive. So you saw union—we’ve seen union lawsuits in the 2nd and the 4th and the 9th, and they’re arguing the ETS doesn’t go far enough. They’re saying it should be even more restricted.

Now, I think they filed those lawsuits because they wanted to put those circuits into what’s called the lottery process. And that’s where we’re headed.

In fact, just today, the Judicial Panel on Multidistrict Litigation—which is a panel of judges that handle multidistrict litigations, same type of litigation filed in multiple different courts—they’re going to hold a drawing, a raffle, basically. They’re going to literally pick a circuit court out of a drum and that circuit court will become the court where all these challenges will be consolidated. And no one knows right now which court that’s going to be.

If it’s the 5th Circuit, I think we all know exactly what they think about the ETS. But let’s say it’s the D.C. Circuit or the 9th Circuit, well, we don’t know. And if it it’s one of those circuits, we expect the federal government to immediately file a motion asking that panel to dissolve the 5th Circuit’s order.

So there are a number of different plays left to be had in this fight. So the stay is just the beginning. We have to keep the pressure on. We have to continue because this is nowhere near finished.

Allen: And what are the chances that this rises all the way to the Supreme Court? I know that Ben Shapiro at The Daily Wire says he’s willing to take this all the way to the Supreme Court. Do you think that would happen?

Bangert: I think there’s a good chance. And it’s always hazardous for a lawyer to say, “I think there’s a good chance my case will go to the Supreme Court,” given the odds. But this one’s different. I think this one has a very good chance of going to the Supreme Court because of the stakes. Because it’s a case involving the federal government.

We now have a number of state attorneys general who have filed challenges to the ETS. So this has really become an issue of national importance and questions like this oftentimes are resolved by the U.S. Supreme Court. So this is a case where I would hazard a guess that the Supreme Court is very likely to be the final word in this challenge.

Allen: And how quickly do you think that would happen? Because of course, it can take years for a case to work its way up through the courts and even years for the Supreme Court to hear the arguments and then make their ruling. Would this be a situation where the case would be fast-tracked due to the time-sensitive nature of the vaccine mandate?

Bangert: I think there’s a very good chance that that could happen. I also think there’s a good chance that motions practice may take this case to the Supreme Court on what’s been called the shadow docket. I think you could see it pop up there at the Supreme Court very quickly, potentially before the January implementation deadline for full implementation.

So I would not be surprised at all if we saw something that quick happen. And again, always hazardous to predict that, but in cases like this, where you’re testing the limits of federal power and 84 million Americans are potentially affected, I think that you do have a real possibility [of] the Supreme Court taking fast action here.

Allen: Ryan, let’s take a minute and talk about that million-dollar question, which is, is the vaccine mandate constitutional? Obviously, you have people on both sides claiming different things. What’s your response to that? Is this mandate constitutional?

Bangert: I would argue that it’s not. Now, obviously, you have good arguments on both sides in some cases, but one thing is for sure—and maybe I want to kind of walk through very quickly what the legal arguments are against the mandates. I think that’s a helpful exercise.

Well, the first question is, does the Constitution empower the federal government to compel individual businesses to force their employees to get vaccinated? I think the answer is no. I think we have some guidance from the U.S. Supreme Court in [a] case which dealt with the Affordable Care Act and the requirement that individuals purchased insurance.

The court was very skeptical that Congress could compel participation in commerce in that case. It was also very skeptical that Congress could compel individuals to eat their broccoli. This looks a little bit like forcing individuals to eat their broccoli: “Go get your vaccination.” Obviously, you can debate that all day long.

I think that the commerce clause doesn’t quite stretch this far, but even if it does … and the 5th Circuit didn’t address that question in its stay opinion, it raised the question and it said, “We really doubt it.” But even if the commerce clause does stretch that far, we don’t think in this particular instance OSHA’s correctly exercised its power to take this step.

If you look at what they did, this is not a normal rule-making. This is not something that went out for notice and comment to the public. It’s an emergency temporary standard and the bar is high. It has to be a grave danger that’s being addressed by the ETS. It has to be a workplace danger. And the steps taken have to be necessary to address that danger. And the 5th Circuit was not convinced and not persuaded that those high bars, those high standards, were met here for a variety of reasons.

Allen: So then what is the likely outcome? What is, in all likelihood, going to happen next? And where does this path ultimately lead us as there’s so many private businesses and states that are challenging this vaccine mandate?

Bangert: You’re right and the answer to that question is we’ll wait and see. It’s going to be a roller coaster ride from here forward. Certainly, we know where the 5th Circuit stands on the issue. If the 5th Circuit’s name is drawn out of the drum, I think we have a pretty good indication what’s going to happen next. I think the stay is going to remain in place and we will proceed to a permanent injunction hearing.

If a different circuit name is drawn out of the hat, then the next question that has to be answered is, will the stay remain in place or will it be vacated? We will know that once we figure out which circuit we have and the federal government’s reaction to that. Do they immediately file a motion to dissolve it? If they do and that stay is dissolved, you could very well see action at the U.S. Supreme Court fairly quickly on the so-called shadow docket.

So those are some potential paths this could take going forward, but everything really turns right now on which circuit’s name is drawn out of that hat today at the lottery process.

Allen: OK. Interesting. And for the individual listening who works at a business, an organization who’s affected by this mandate, and they’re thinking they themselves might not be comfortable getting the vaccine, they haven’t gotten the vaccine and they’re asking that question of, ‘Is there going to be resolution before Jan. 3? Am I going to be kept from having to get a vaccine that I don’t want to receive?’ What is your encouragement to them? Or do you think that they’re in a good position? What would you say to that individual?

Bangert: Well, you have a lot of people fighting for you and I know it’s a difficult place to be. I’ve talked to many of those individuals and I think it’s incredibly heartbreaking to see our federal government put those people of good faith in this position where they’re having to choose between, in many cases, following the dictates of their conscious or losing their job. That is a almost unthinkable place for American citizens to be placed by their federal government.

And I really regret that we have come to that place, which is why we filed this lawsuit, because in many ways the federal government has no authority, it has no power to put its citizens in that predicament. It should not have that power.

But I would say to that person, “Hang in there. There’s a lot of road left to travel in this and we’ll see where it goes.” But it’s my sincere hope that we can, through our collective efforts, generate an answer for that person before they’re really put to the test.

Allen: Is there anything that American citizens can be doing? Is there any action that they can take to be pushing back on this mandate?

Bangert: Well, I’ll tell you, I am so impressed with all of our clients who have stepped forward. The Daily Wire, our seminaries, we’ve also brought a lawsuit on behalf of Southern Baptist Theological Seminary, some schools in Florida, a Catholic school in the Dakotas have all stepped forward to challenge this thing.

But for individual citizens, insist on your rights. You do have, at least right now under this ETS, you have a right to a religious exemption. You have a right to an accommodation if you have a health condition that requires that you not receive this vaccine. So you do have rights right now. So … if you have those legitimate objections, put your employers through their paces, as you can insist on them.

Allen: And for those that do want to file religious exemptions, are there any resources that you would point them toward for how they can do that? For how they should craft those statements?

Bangert: Certainly. They can visit our website. We do have some materials there that assist with that. But I would certainly tell people who are considering claiming a religious exemption that your employer really needs to honor your good faith explanation of what your beliefs are. They really shouldn’t be digging behind them excessively.

And we have seen, in some cases, employers doing that. I don’t think that’s correct or proper. So I think [you should] really insist that your employer accept your good faith, religious belief at face value. Answer their questions. If they have questions, answer them. I would never counsel anyone not to answer the questions that employers are putting forward, but don’t back down, don’t be a coward. Because this is something that you have a right to.

Allen: Ryan Bangert, senior counsel at Alliance Defending Freedom. Ryan, thank you so much for your insights on this. This is a case that all Americans are watching. We’re going to be watching The Daily Wire’s case and all the cases that Alliance Defending Freedom is fighting in the courts. And we will see where this leads, but thank you for what you-all are doing.

Bangert: Thank you, Virginia. We really appreciate it.

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