ACLJ Sues Biden Administration Over Employer Mandate on Behalf of Heritage Foundation


Jordan Sekulow

December 1, 2021

5 min read

Executive Power



The ACLJ is representing the Heritage Foundation in a new lawsuit challenging the Biden Administration’s vaccine mandate for employers. The mandate has been promulgated by the Occupational Safety and Health Administration (OSHA) and applies to all employers with 100 or more employees, regardless of whether they work remotely. After OSHA issued this mandate, the Fifth Circuit Court of Appeal temporarily blocked it. However, all legal challenges have been consolidated at the Sixth Circuit Court of Appeals, and President Biden has vowed to continue fighting to implement the mandate. The cases could ultimately be decided by the Supreme Court.

ACLJ Chief Counsel Jay Sekulow laid out exactly what the ACLJ is challenging in this lawsuit:

It’s a very narrow and specific challenge. . . . We are challenging the constitutionality of the authority of the Occupational Safety and Health Administration to actually enforce this mandate. We think that is an encroachment on federalism grounds, separation of powers allocated to the states. The states can do these kinds of things, but the federal government can’t. OSHA has previously said they can’t. . . . Constitutionally, they don’t have the authority to do it. . . . They knew they didn’t have the authority to do this, by the way. They knew that early on. But the politics of it made them do it. These cases have all been consolidated in the Sixth Circuit Court of Appeals. What is going to happen is the ultimate arbiter of this is the Supreme Court. . . . By the way, the state government has the authority to do these kinds of things . . . but the federal government coming in does not.

Our Constitution entrusts these decisions to the States. This balance of power was adopted by the Framers to protect fundamental liberties and reduce the risk of tyranny and abuse. If we allow the federal government to exercise such unheralded power, there may be no end in sight to the Biden Administration’s power grab.

ACLJ Director of Policy Harry Hutchison explained what this mandate violates: 

The mandate exceeds OSHA’s statutory authority, and OSHA has already acknowledged that. That in and of itself in my view constitutes a violation of the Constitution. In addition, the OSHA mandate exceeds the federal government’s commerce power and encroaches on the state's Tenth Amendment police power. I think if you look at the case law going back to 1905, in a number of cases the Supreme Court has established firmly that states have police power. And that police power is protected from encroachment by the federal government by the Tenth Amendment, notwithstanding this precedent, notwithstanding the Constitution, OSHA has issued a mandate pursuant to whom? President Biden. He lacks the authority to force OSHA to issue an unconstitutional mandate. . . . So, I think it is very important for our listeners to understand that the ACLJ is acting on behalf of an established organization – The Heritage Foundation – and we are fighting back. We are strongly in favor of individual liberty, the rule of law, and the Constitution and our active involvement in this particular case establishes that.

As we are actively involved in domestic issues, we are also involved in international matters. A recent international issue that has come to the surface is that China’s weapons program is starting to ramp up its nuclear capability. So now, the U.S. is trying to have conversations with them about their nuclear strategy. ACLJ Senior Advisor for National Security and former acting Director of National Intelligence Ric Grenell explained the danger of this:

The reason we are talking about this is because there is an assessment report that the Biden Administration is doing about what capabilities the Chinese have when it comes to nuclear weapons and what our response would be. This is a report that is required by law for every Administration to do. . . . What is troubling is that the Free Beacon has been reporting on the fact that the Biden Administration has asked two experts on limiting our nuclear weapons from the Carnegie Institute to submit a report to the Biden Administration on options that the Biden Administration can use going forward when it comes to nuclear weapons. Now, these two individuals who have been asked to do this report have a long history of trying to get the United States to get rid of all of our nuclear weapons. That’s a problem. That’s a real concern. The Joe Biden today is not the Joe Biden of 15 years ago or even 5 years ago. The progressives have taken over this Administration. And now what we see is China rising to the occasion of a weak Joe Biden.

While it is clear the Biden Administration is showing weakness all around the world, they are trying to compensate by attempting to give the federal government more power here at home. The federal vaccine mandate is just one example. It is historic and an honor to be able to represent The Heritage Foundation, one of the foremost conservative organizations in the country, in their first lawsuit. We will continue to provide you with updates on our legal efforts concerning this case. 

Today’s full Sekulow broadcast is complete with even more analysis of the lawsuit against the Biden Administration and China’s nuclear weapon program.

Watch the full broadcast below.

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