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Supreme Court of the United States

Challenging Biden’s national vaccine mandate for private employers

President Biden’s national COVID-19 vaccine mandate ignores the Constitution.

Update: January 13, 2022 - The U.S. Supreme Court halted implementation of the Biden administration's COVID-19 vaccine mandate for large, private employers, issued via the Occupational Safety and Health Administration (OSHA). Read the press release.

Watch ADF's recap
of the SCOTUS decision

Americans may have different opinions about COVID-19 vaccines, but every American should agree that the government’s national vaccine mandate is a vast and unlawful power grab by the executive branch.

Just weeks after the administration all but admitted that a mandate was “not the role of the federal government,” President Biden announced that he would impose a national vaccine mandate on all employers with 100 or more employees.

Americans have already had their freedoms infringed upon due to COVID-19. The Biden administration’s flip flop on a national vaccine mandate is another threat to freedom that cannot stand.

If politicians and bureaucrats are allowed to brazenly ignore the constitutional limits on their power whenever they please, we no longer live in a free society.

That’s why ADF has filed federal lawsuits and emergency motions on behalf of multiple private employers, including a number of religious organizations, challenging the Biden administration’s unlawful private employer mandate.

Consolidated OSHA case

Federal Courthouse Building

In re: OSHA Rule on COVID-19 Vaccination and Testing

On November 16, the U.S. Court of Appeals for the 6th Circuit was selected to decide all lawsuits challenging the federal government’s private employer vaccine mandate. This consolidated case includes the four cases ADF filed in early November.

More about this case


ADF Cases

The Daily Wire

The Daily Wire v. Occupational Safety and Health Administration (OSHA)

The Daily Wire, a conservative media company, filed a legal challenge with the 6th Circuit Court of Appeals on November 4, 2021. ADF and Dhillon Law Group are representing the Daily Wire. The suit challenges the administration’s national private employer vaccine mandate.

Southern Baptist Theological Seminary

The Southern Baptist Theological Seminary v. OSHA

The Southern Baptist Theological Seminary and another seminary filed a lawsuit with the U.S. Circuit Court of Appeals for the 6th Circuit on November 5, 2021. This suit also challenges the legality and constitutionality of the Biden administration’s mandate.

Christian Employers Alliance

State of Missouri v. Biden

On November 5, 2021, ADF filed suit on behalf of multiple clients who have joined with Missouri and other states and businesses in filing a petition with the U.S. Circuit Court of Appeal for the 8th Circuit. This suit also challenges the legality and constitutionality of the administration’s private employer mandate.


State of Florida v. OSHA

On November 5, ADF also filed suit on behalf of two religious schools that have joined the states of Florida, Alabama, and Georgia in filing a petition with the U.S. Circuit Court of Appeals for the 11th Circuit. This suit likewise also challenges the legality and constitutionality of the government’s mandate.

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Answering Your Questions on the Private Employer Vaccine Mandate

Since the federal government announced this mandate in September, we at ADF have been inundated with questions from concerned Americans. You may have some questions yourself. Please find below some of the most common questions we receive.

Is the private employer vaccine mandate unconstitutional?

Yes. The U.S. Constitution gives all lawmaking authority to Congress. The president cannot unilaterally make laws. No other executive agency can make laws; they can only issue regulations if given express authority from Congress. Congress has not given authority to the president or executive agencies to issue this unprecedented mandate. If politicians and bureaucrats are allowed to brazenly ignore the constitutional limits on their power whenever they please, our fundamental liberties are at risk.

Did the Biden administration originally say there would not be a vaccine mandate?

Yes. President Biden has said repeatedly that he would not mandate the COVID-19 vaccine. Just weeks before he announced the mandate, President Biden’s press secretary said that such a national vaccine mandate was “not the role of the federal government.”

How will the private employer mandate be enforced?

President Biden directed the Occupational Safety and Health Administration to issue an Emergency Temporary Standard (ETS), which it released on November 5. The ETS forces all employers with 100 or more employees to either: (a) require all employees to receive the vaccine, or (b) develop a policy requiring those employees who remain unvaccinated to submit to costly weekly testing and masking requirements. Practically, this will be enforced through OSHA, which is part of the Department of Labor.

Are there lawsuits against the federal vaccine mandate?

On November 5, 2021 OSHA released the official ETS. Almost immediately, multiple lawsuits were filed across the country by private employers and states, challenging the ETS. On November 6, the 5th Circuit Court of Appeals preliminarily halted the ETS from going into effect due to “grave statutory and constitutional issues.” Then, on November 12, the same court issued another order preventing the ETS from going into effect “pending adequate judicial review.”

The court ordered “that OSHA take no steps to implement or enforce the Mandate until further court order.” The federal government requested that the various lawsuits be consolidated in one court. Through a random drawing conducting by a panel, the 6th Circuit Court of Appeals was selected on November 16 to hear all of the cases going forward.

Has ADF filed a lawsuit against the private employer mandate?

Yes, ADF has filed four lawsuits challenging the private employer vaccine mandate. You can learn more information on ADF’s cases here.

Who are ADF’s clients?

Alliance Defending Freedom along with the Dhillon Law Group, Inc. represents The Daily Wire, a media company based in Tennessee. ADF also represents the Southern Baptist Theological Seminary, a second seminary, Christian Employers Alliance, HSLDA, two schools in Florida, and Bishop O’Gorman Catholic Schools in South Dakota.

Can a state mandate the COVID vaccine?

That’s a separate question, and not one at issue in the OSHA lawsuits. Our lawsuits contend that the federal government cannot unilaterally mandate vaccines for organizations with 100 or more employees. The Constitution gives lawmaking powers solely to Congress—not to the executive or judicial branches. So, for the president to assert that he can mandate a policy nation-wide is not only unconstitutional but a flagrant abuse of power.

Can an employer mandate the COVID vaccine?

Private employers can generally have mandatory job requirements so long as they don’t violate the law. But they must accommodate employees with sincere religious objections to vaccine requirements if it would not cause the employer an undue hardship. Government employers must also respect the constitutional rights of their employees and offer accommodations for employees with religious objections.

What is a religious exemption for a vaccine?

The Civil Rights Act of 1964 prohibits any private or government employers from discriminating against employees on the basis of religion. Under this law, employees are entitled to ask for religious exemptions to any of their employer’s directives that violate their sincerely held religious beliefs. If you think you may have a bona fide religious objection to a vaccine requirement, you can read more about religious exemptions here.

Is there a Supreme Court precedent for vaccine mandates?

There is no Supreme Court case supporting a federal agency’s authority to unilaterally impose a requirement on private and religious employers to vaccinate their employees or test them weekly. That’s why we are challenging the power of the federal government to force private businesses and nonprofits to choose between ensuring their employees’ compliance with the federal mandate and facing severe penalties.

Does ADF have a position on the vaccine?

ADF takes no position on the vaccine itself. Some of our team members, and some of our clients’ employees, have chosen to be vaccinated while others have not. But ADF does take a position on the federal government mandating businesses and nonprofits require the vaccine for employees—it’s unconstitutional and it’s government overreach.

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