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AG Derek Schmidt: Proposed vaccine mandate is unlawful, legal action will proceed if policy moves forward

Release Date: Sep 16, 2021

TOPEKA – (September 16, 2021) – President Biden must drop his unlawful proposed vaccine mandate or face legal action over the policy, Kansas Attorney General Derek Schmidt said today.

Schmidt and attorneys general from 23 other states sent a letter to the president warning that litigation would follow if the administration proceeds with its announced plans to mandate many private sector employees to either get a COVID-19 vaccine, submit to weekly testing or be fired. The administration has said it intends to carry out the mandate through an Occupational Safety and Health Act emergency temporary standard.

“Congress has not clearly granted you the authority to impose your sweeping vaccine mandate, which would have enormous social, economic, and political consequences,” the attorneys general wrote. “Millions of Americans are threatened with losing their jobs and the benefits that come with them, including life and health insurance and retirement benefits. Your threat carries with it the threat of people losing their homes and shifting the financial obligation of supporting currently independent and employed individuals to public support systems. Worse still, if your expansive reading of the law succeeds, the American people can expect further abuses, as it is hard to imagine any requirement that the law would not allow. You are clearly acting beyond the scope of the statute, and you will fail in court.”

The attorneys general wrote that federal courts have been skeptical of the use of OSHA emergency temporary standards because of concern about federalism and the separation of powers. Schmidt and the others raise concerns about the expansion of a federal regulatory agency and public perception of the order’s constitutionality.

Among the concerns addressed in the letter are the practical policy considerations of such a sweeping executive order. Most concerning is the potential to drive individuals out of the workforce, particularly health care workers, who are most needed right now to fight the pandemic. The mandate also ignores tens of millions of Americans with natural immunity and will drive further skepticism of vaccines.

“The risks of COVID-19 spread also vary widely depending on the nature of the business in question, many of which can have their employees, for example, work remotely,” the attorneys general wrote. “The one-size-fits-almost-all approach you have decreed makes clear you intend to use the OSHA statute as a pretext to impose an unprecedented, controversial public health measure on a nationwide basis that only incidentally concerns the workplace.”

A copy of the letter can be found at

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News releases issued prior to 2011 are available through an archive hosted by the Kansas State Library.