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November 5, 2021

Media contact: Liz Brocker (701) 328-2213

BISMARCK, ND – Attorney General Wayne Stenehjem today joined an eleven-state coalition that includes Missouri, Montana, Arizona, and Nebraska in filing a lawsuit against the Biden Administration to halt the vaccine mandate on private employers with more than 100 employees. Five private employers joined the challenge as well. A Petition for Judicial Review was filed in the United States 8th Circuit Court of Appeals earlier this morning, and a Motion for Stay is expected to be filed early next week.

“This lawsuit is not about whether people should get vaccinated, it is about opposing yet another federal overreach, this time an attempt by the federal government to commandeer private employers to require their employees to get vaccinated,” said Stenehjem. “We contend the mandate violates the United States Constitution, including the 10th Amendment. We will be seeking an injunction to prohibit the implementation of this unlawful requirement,” he continued.

The lawsuit challenges the Emergency Temporary Standard promulgated by the Occupational Safety and Health Administration (OSHA) which purports to require private employers with 100 or more employees to mandate their employees to be vaccinated or implement weekly testing and mask requirements. Non-compliant businesses could face steep fines.

“We wholeheartedly support the attorney general’s challenge to this illegal, misguided and unfairly applied rule. It’s not the role of the federal government – or the states – to force a vaccine mandate on private businesses,” Gov. Doug Burgum said. “North Dakota has been a leader in making safe, effective vaccines available to all residents who want them, and we encourage those who haven’t received the vaccine to consult with their trusted medical provider. The Biden administration’s overreaching mandate will only add to vaccine skepticism and resistance and exacerbate labor challenges while intruding on states’ rights and personal freedoms. The courts should immediately block this OSHA emergency rule and protect the freedom of private employers to make decisions on vaccinations that are right for them and their businesses.”

The petition states, “This mandate is unconstitutional, unlawful, and unwise. The federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment. OSHA also lacks statutory authority to issue this mandate, which it shoe-horned into statutes that govern workplace safety, and which were never intended to federalize public-health policy.”

The petition also states, “For over a century, the U.S. Supreme Court has recognized that policies on compulsory vaccination lie within the police powers of the States, and that ‘they are matters that do not ordinarily concern the national government.’ Until quite recently, the Biden Administration agreed. The White House stated on July 23 of this year that mandating vaccines is ‘not the role of the federal government.’ But on September 9, 2021, that position underwent a dramatic reversal. The President announced several sweeping vaccine mandates, including a vaccine mandate to be issued by OSHA that applies to all employers who employ more than 100 employees. OSHA published this ‘emergency’ mandate two months later, crafting an elaborate post hoc justification for a policy that the President had already dictated that it would impose.”

In addition to North Dakota, attorneys general from Missouri, Arizona, Montana, Nebraska, Arkansas, Iowa, South Dakota, Alaska, New Hampshire, and Wyoming also joined the challenge.

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