ACLJ Representing Heritage Foundation in Lawsuit Against Biden’s Vaccine Mandate


Jay Sekulow

November 30, 2021

4 min read

Executive Power



The ACLJ has just filed a lawsuit against President Biden’s vaccine mandate on behalf of the Heritage Foundation – one of the largest conservative organizations in the nation known for its work to formulate and promote public policies that advance free enterprise, limited government, individual freedom, and traditional American values.

The lawsuit was filed directly with the U.S. Court of Appeals for the D.C. Circuit, challenging the Biden Administration’s COVID vaccine mandate for employers, which has been promulgated by the Occupational Safety and Health Administration (OSHA).

The ACLJ is no stranger to defending the constitutional rights of conservative organizations and businesses against unconstitutional government overreach, winning cases against the HHS abortion-pill mandate on behalf of numerous private employers as well as against the IRS targeting of conservative organizations and Tea Party groups.

The ACLJ is honored to serve as counsel for The Heritage Foundation in this case which focuses on the serious constitutional issues raised by the Biden Administration’s employer mandate.

Earlier this year in September, President Biden proclaimed that his “patience [was] wearing thin” with those who had made a personal choice not to get vaccinated and, thus, planned to force employers of more than 100 individuals to require their employees to get the COVID vaccine or to submit to weekly testing. On November 5, 2021, OSHA issued the mandate. Shortly thereafter, the Fifth Circuit Court of Appeals temporarily blocked it. That case, through special federal appellate procedures, has now been moved, along with several legal challenges in other circuits, to the Sixth Circuit Court of Appeals. Just last week, however, the government filed a motion to dissolve the stay issued by the Fifth Circuit which currently prevents the government from enforcing the mandate until further proceedings are held. If the motion is granted, OSHA could move forward immediately with enforcement.

Our new lawsuit on behalf of the Heritage Foundation highlights OSHA’s own prior admission that such action to regulate an infectious disease would not be appropriate, and further argues that the mandate represents a gross abuse of power that clearly encroaches on the police power traditionally reserved for states and exceeds the powers granted to Congress under the Commerce Clause which permits Congress to regulate channels of interstate commerce, not the individual personal choices of American citizens. Allowing the ultra vires Mandate to stand would impermissibly compel citizens to act as the Government would have them act.

Heritage’s current President, Kay C. James, and incoming President, Kevin Roberts, issued a joint statement on the filing. James stated:

Dr. Roberts and I, along with the Board of Trustees, unanimously agreed The Heritage Foundation has a vital role to play in the courts to protect and secure the freedom of all Americans to make medical decision for themselves. To all of our members, to the conservative movement, and to Americans concerned by this unacceptable overreach by President Biden and his administration, I say this—Heritage’s leadership is united behind this lawsuit, and we are going to fight tooth-and-nail and send the message that our freedoms are not up for debate.

Roberts added:

The Heritage Foundation has not historically filed lawsuits. That we are doing so now should make clear to any observer that we view this mandate as a deadly serious threat to our individual liberty and the values that make America great. Under my predecessors, The Heritage Foundation has stood rock-solid in defense of liberty, freedom, and opportunity for all, and it will continue to do so under my leadership.

I wish this lawsuit were unnecessary. I wish we had an administration in the White House that respected the Constitution and the rule of law. From the unprecedented border crisis, to the disastrous Afghanistan withdrawal, to now this unlawful COVID vaccine mandate, it is irrevocably clear that this administration will stop at nothing—even harming Americans and our national interests—in pursuit of the most radical policy agenda in American history. Rest assured, we at Heritage are only just beginning to fight back.

For over three decades, the ACLJ has been at the forefront of defending personal liberties and constitutional freedoms against government overreach. With this lawsuit the ACLJ is once again doing just that. Before President Biden took office, he swore to preserve, protect, and defend the Constitution of the United States. We intend to make sure President Biden upholds this oath. We will defend liberty, and we are prepared to take this case all the way to the Supreme Court as we have done on numerous occasions in the past to preserve the constitutional rights of all Americans.

We will keep you updated as our case progresses.