Kris Kobach plans lawsuit against federal vaccine mandates, urges Kansas legislators to respond

Andrew Bahl
Topeka Capital-Journal
Former Secretary of State Kris Kobach said Tuesday he intent on filing a legal challenge over a requirement that large employers require their workers be vaccinated against COVID-19 or be tested weekly for the virus.

Former Secretary of State Kris Kobach said Tuesday he intends to file a legal challenge in opposition to a federal COVID-19 vaccine mandate, as he urged legislators to take action opposing the mandate — even though legal experts say its fate in court is uncertain.

Kobach presented before a legislative committee created to review potential policy responses to the federal vaccine mandates, including requirements from the Occupational Health and Safety Administration that businesses with 100 and more employees be vaccinated or test weekly. Formal rules for that policy were unveiled last week, with employees forced to comply starting Jan. 4.

Kansas and a slew of other Republican states have challenged in federal court the OSHA mandate and a separate requirement that federal employees be vaccinated.

But Kobach said he would be leading a lawsuit on behalf of a group of private employers in the Eighth U.S. Circuit Court of Appeals in St. Louis, which he said would be filed later Tuesday. The suit, filed in Kobach's capacity as chief counsel for the conservative legal group Alliance for Free Citizens, is on behalf of two North Dakota businesses affected by the 

The controversial former secretary of state echoed arguments from a range of conservative legal minds, including Attorney General Derek Schmidt, saying the OSHA mandate oversteps the temporary rulemaking authority granted to them by Congress and poses other, constitutional questions.

Kobach's presentation comes as he is running to replace Schmidt as attorney general. In a twist of fate, one of Kobach's opponents, Sen. Kellie Warren, R-Leawood, is on the special committee examining the vaccine mandates.

Kobach: Bar employers from following federal mandate

In his remarks, Kobach urged lawmakers to pass legislation barring employers from following the federal requirements, as well as a measure preventing businesses from unilaterally imposing vaccine mandates themselves.

The state could do so confidently, he added, because he believed "there is a very highly likelihood the OSHA standard will be struck down."

"One might say shouldn't we wait and see ... I would say no," Kobach said. "On the contrary, the state should pass the law under the strong assumption the law is unconstitutional."

Legal experts note the question of whether federal courts will strike down the mandates is more complicated, however.

Richard Levy, a professor of constitutional law at the University of Kansas, said the most likely argument wouldn't be in constitutional in nature at all but rather would focus on whether OSHA's ability to issue emergency temporary standards to guard against a "grave danger" threatening workers.

Kobach and others have pointed out that OSHA rarely issues those temporary standards and that, when they do, they often fail.

But Levy countered that the fate of the lawsuits would likely fall to the leanings of whichever judge hears the case. Other arguments, including on religious and free exercise grounds, would likely be less persuasive, he added.

"People have a tendency on both sides of the political spectrum to believe that, if they think it's wrong, and if they deeply believe that it's wrong, then it must be unconstitutional," Levy said. "But but that's not the way it works." 

Legislators are expected to consider a range of policy options in response to the federal mandates. While some conservative members want a response similar to what Kobach proposed, it is expected that potential actions would center on other, more narrow measures, such as mandating any Kansan who loses their job over the requirements be granted unemployment benefits.

Kobach also pushed for attention to be given to how employers are determining whether an individual is eligible to receive a religious exemption. Republicans have argued state agencies — notably the state's public universities —and businesses alike are being too intrusive in determining whether an individual has sincerely held religious beliefs, the standard for such an exemption.

But a sweeping measure barring employers from following the federal mandates would be dangerous ground, even though Kobach insisted it would hold up to legal scrutiny. Businesses could be slapped with fines running into the thousands of dollars for every day they do not comply — and state law would not be a shield, Levy said.

"If an employer were to do so they're rolling the dice," Levy said. "They might be successful in challenging the validity of the regulation. But if the regulation is upheld, then they would be guilty of a violation, and nothing in the Kansas statute would save them."

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.