Legal expert pours cold water on GOP threat to sue Biden over vaccine mandate

In an interview with Business Insider, an expert in vaccine law suggested there are multiple avenues that Republicans can take if they want to make good on their threat to sue President Joe Biden over his mandate that would make companies get their employees vaccinated or take weekly COVID-19 tests -- but they are all likely to fail.

As the report notes, within minutes after Biden announced a sweeping new vaccine mandate, Republican lawmakers flooded social media with threats to sue and called on their followers to not "comply."

According to RNC head Ronna McDaniel, "When his decree goes into effect, the RNC will sue the administration to protect Americans and their liberties."

As Business Insider's Erin Snodgrass wrote, "The administration will require employers with more than 100 employees to mandate vaccines or weekly testing — a move that will affect more than 80 million workers. Federal employees, contractors of federal agencies, and staff at all healthcare facilities that receive funding from Medicare or Medicaid will also be required to show proof of vaccination."

With that in mind, Snodgrass interviewed legal expert Brian Dean Abramson, who admitted up-front that Biden's plan is the most far-reaching in the country's history.

As he explained, previously mandates started at the state level, claiming, "During the smallpox epidemics in the 19th century and early 20th centuries, it was fairly common for states to mandate smallpox vaccines for large portions of the population."

Since Biden is using the Occupational Safety and Health Administration to enforce his mandate, Abramson said unhappy Republicans might initially consider running to the courts to discover "whether OSHA, a federal regulatory agency tasked with keeping workers safe, has the power to broadly mandate vaccines under the Commerce Clause."

After explaining the Commerce Clause is intended to provide "Congress the broad power to legislate," Abramson explained, "If there was a Commerce Clause challenge and it succeeded, that would have the strongest impact toward eliminating the ability of the federal government to require broad vaccination mandates."

However, he added, "he also thinks that particular argument is weak," saying another approach would be to claim the mandate is "overly burdensome," but even that has its limitations.

"The question of whether it's discriminatory or burdensome is probably a stronger argument," Abramson explained. "But it isn't an argument that necessarily eliminates mandates."

According to Insider's Snodgrass, "If such a challenge succeeded — something Abramson conceded was possible — the federal vaccine mandate would likely not be dismantled or overturned. Instead, it would prompt the regulation to be rewritten in a more carefully tailored way."

More importantly, he added, is that Republicans don't know exactly what they are fighting because OSHA has yet to issue guidance.

"We have to wait and see what OSHA says," Abramson elaborated. "There's a long sausage-making process between here and there," with Snodgrass writing, "He said it's possible the final OSHA rule will incorporate measures to avoid the kinds of concerns that could lead a court to overturn the mandate. "