ATLANTA (CBS46) -- Gov. Brian Kemp is vowing launch a legal challenge to the Biden Administration’s Executive Order that will require companies with 100 or more employees to require COVID vaccinated of employees or test them weekly.
“This is just another example of this administration’s overreaching knowing that it doesn’t have any authority,” said State Attorney General Chris Carr, who will be leading the legal efforts in court.
“Yes, this is a public health crisis, and we have to do it the right way; it must be done legally. This issue is about solely whether or not the President of the United States through the stroke of his pen can do what he said he is going to do, and he cannot,” Carr told CBS46.
Carr says his office is currently exploring all legal avenues to push back against the order that’s currently being drafted by OSHA.
"The State of Georgia suing is a little awkward because it’s a mandate that would potentially apply to employers of 100 plus," said Matthew Lawrence, an associate professor at the Emory University School of Law. "Employees or employers could sue, but it is not clear what interest the state of Georgia would have. Maybe it would join such a suit," Lawrence stated.
Regarding the legality of the order, The Occupational Safety and Health Act of 1970 affords the federal agency broad regulation authority to protect against hazards in the workplace.
While the agency has regulated against health threats like pesticides and asbestos, it has not mandated vaccines. Emory law professor Matthew Lawrence tells CBS46 that while OSHA does not have a precedent of regulating a vaccine, the federal government does.
“The government mandating vaccines is not unprecedented at all,” Lawrence said. “What is unprecedented is the federal agency OSHA using its broad powers in this particular way and that’s why I see strong legal arguments that it is authorized.”
Lawrence says in exploring possible legal challenges, attorneys will question if the agency of the federal government have the power to make the change; did it act reasonably; and, is the change constitutional? To some, the Executive Order seems like overreach, but it is not without precedent under a public health threat.
In 1905, in the Jacobson v. Massachusetts case, the Supreme Court ruled that the smallpox vaccine could be made mandatory to protect public health, even if it infringed on personal liberties. The case could be used to defend the Biden order.
“It was a big case because the Supreme Court recognized people have a liberty interest in not getting a vaccine,” Lawrence said. “Getting a shot affects your liberty, so that is protected by the Constitution. But, the Supreme Court said there is also a strong compelling interest in protecting against communicable disease in our society.”
Kemp tweeted Friday afternoon that he had a call with several Republican governors who plan to challenge the vaccine requirements, stating vaccines should be a choice and he won’t be “bullied” by the Biden administration.