US Senators and House members moving to disapprove Biden COVID vaccine orders

Led by US Senator Mike Braun of Indiana, 41 Republican senators announced on November 3 that they are acting to formally disapprove President Biden’s September 2021 Executive Order mandating an OSHA Emergency Temporary Standard (ETS) requiring employees at private businesses with 100 workers or more to receive COVID vaccines. The senators are proceeding under the Congressional Review Act, which provides a process for Congress to eliminate an executive branch rule. Sen. Braun is the ranking member of the Senate Subcommittee on Employment and Workplace Safety, which has jurisdiction over OSHA.

Simultaneously, Rep. Fred Keller, the ranking member of the House Subcommittee on Workforce Protections, is also formally moving to disapprove the mandate.

The Congressional Review Act permits Congress to overturn certain federal agency regulations and actions through a joint resolution of disapproval. If such a joint resolution is approved by both houses of Congress and signed by the President, or if Congress overrides a presidential veto, the rule at issue is invalidated.

During the 20-day period following OSHA’s publication of the ETS in the Federal Register, the disapproval will be analyzed by the Senate Health, Education, Labor and Pensions Committee. At the end of the 20 days, the formal disapproval will proceed to a vote in the full Senate. This is expected to occur in December, and will compel all senators to go on the record as to their position concerning the mandate. A similar process and vote is expected in the House.

This latest action follows the multiple threats of constitutional and procedural challenges to be filed by state Attorneys General once the ETS is published. Among other arguments is that the ETS is void on its face because OSHA cannot satisfy the statutory prerequisites for its issuance.