Here's why members of Congress are exempt from Biden's vaccine mandate

Johnson & Johnson CEO Alex Gorsky looks on as President Joe Biden delivers remarks on COVID-19 vaccine production Wednesday, March 10, 2021, in the South Court Auditorium in the Eisenhower Executive Office Building at the White House.
Johnson & Johnson CEO Alex Gorsky looks on as President Joe Biden delivers remarks on COVID-19 vaccine production Wednesday, March 10, 2021, in the South Court Auditorium in the Eisenhower Executive Office Building at the White House. | White House/Adam Schultz

President Joe Biden’s executive orders requiring federal employees, contractors and private employers with more than 100 workers to mandate vaccinations or weekly testing for COVID-19 exempts members of Congress, federal judges and their staffers. 

In the coming weeks, the Labor Department’s Occupational Safety and Health Administration plans to issue an emergency temporary standard implementing the new requirement.

According to the order, businesses can face fines of up to $14,000 if they do not comply.

Because the president's executive order for federal workers and contractors only applies to the executive branch, those who work under the legislative and judicial branches of the federal government are not included. 

In an executive order signed Thursday, Biden wrote: “It is the policy of my Administration to halt the spread of coronavirus disease 2019 (COVID-19), including the B.1.617.2 (Delta) variant, by relying on the best available data and science-based public health measures.”

It continued: “The Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services has determined that the best way to slow the spread of COVID-19 and to prevent infection by the Delta variant or other variants is to be vaccinated.”

The order added that for the health and safety of the federal workforce and the efficiency of the civil service, “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”

In another executive order, also signed this week, Biden wrote: “My message to unvaccinated Americans is this, what more is there to wait for? What more do you need to see? We’ve made vaccinations free, safe and convenient. The vaccine is FDA-approved. Over 200 million Americans have gotten at least one shot. We’ve been patient, but our patience is wearing thin.”

Biden added: “… The Department of Labor is developing an emergency rule to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.”

“Employers understandably have concerns about compliance and enforcement,” The Wall Street Journal wrote in an editorial. “Are they supposed to pay for unvaccinated workers’ weekly testing, and what kind of proof of testing or vaccination must they require? Will franchisees and corporations be liable as joint employers? Nobody knows.”

It also noted that OSHA has never mandated vaccinations.

“Mr. Biden’s logic is also contradictory. In his speech he stressed that the vaccinated are safe from serious Covid. Yet he said the unvaccinated must protect the vaccinated,” they added.

Last month, when Speaker of the House Nancy Pelosi, D-Calif., was asked about requiring members of Congress to be vaccinated, she responded, “We cannot require someone to be vaccinated. It’s just not what we can do,” Forbes noted. 

The vaccination status of members of Congress, she added, “is a matter of privacy.”

Days earlier, however, 20 members of the House sent a letter to Dr. Brian Monahan, who serves as the attending physician, asking him to mandate vaccinations for members of Congress and their staff or to require COVID-19 testing on a twice-weekly basis. 

Responding to Biden’s mandate, Guy T. Williams, chief executive of Gulf Coast Bank & Trust in Louisiana, told the Journal, “I don’t think he has the constitutional authority. Does the president of the United States get to dictate vaccinations?”

Similarly, Jeremy Boreing, the co-founder and co-CEO of The Daily Wire, announced on Thursday evening that the media outlet, which has over 100 employees, is preparing to fight Biden’s vaccine mandate.

“I just got off the phone with our lawyers and I just want to reiterate something that I already said today on Twitter: No,” Boreing said. “The Daily Wire does have more than 100 employees, but we won’t be enforcing Joe Biden’s unconstitutional and tyrannical vaccine mandate. That’s it, we’ll use every tool at our disposal, including legal action to resist.”

Boreing stressed that the company is not anti-vaccine, but is opposed to Biden’s mandate, which it deems as unconstitutional.

Research by the National Academy for State Health Policy shows that Montana is the only state that has banned private employers from mandating coronavirus vaccinations for their workers.

Other Republican-led states might also fight the federal vaccine mandate, as several governors and members of Congress have also denounced Biden's plans.

“I will pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration,” Georgia Gov. Brian Kemp tweeted.

Nebraska Gov. Pete Ricketts also responded, saying: “This plan isn’t about public health — this is about government control and taking away personal liberties. Americans, not the federal government, are responsible for taking charge of their personal health.” 

While the number of COVID-19 cases and hospitalizations have been rising in many states, a CDC study shows 74% of people infected in Massachusetts’ COVID-19 outbreak were fully vaccinated and four of those who were vaccinated were admitted to a hospital.

Last month, officials in Israel said that of the country’s 650 new daily COVID-19 cases, more than half were among the fully vaccinated.

Researchers from Maccabi Healthcare and Tel Aviv University in Israel recently found that “natural immunity affords longer-lasting and stronger protection against infection, symptomatic disease, and hospitalization due to the Delta variant.”

“This is the largest real-world observational study comparing natural immunity, gained through previous SARS-CoV-2 infection, to vaccine-induced immunity, afforded by the BNT162b2 mRNA vaccine,” the researchers said.

Other studies have also shown that people who've already contracted the coronavirus will likely have lifetime immunity.

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