State AG promises court challenge of federal vaccine mandate

HELENA, Mont. (AP) — Montana Attorney General Austin Knudsen promised Friday to fight the new federal vaccine mandate in court.

President Joe Biden announced on Thursday the vaccine mandate, which could affect as many as 100 million Americans. Among other measures, the mandate tells all private businesses with 100 or more employees to require workers to get vaccinated against COVID-19 or get tested weekly for the respiratory virus. The requirement will be enforced by the Occupational Safety and Health Administration, which has yet to release its exact guidelines for implementing the rule.

"Once his administration releases its rule, Montanans can expect to see me file a lawsuit to strike it down," said Knudsen, a Republican, in a statement.

Knudsen joined Gov. Greg Gianforte in calling the new mandate unconstitutional. Several other Republican governors have also questioned the legality of the mandate.

The new mandate appears to conflict with a Montana law passed earlier this year that makes it illegal for private employers to discriminate between employees on the basis of their vaccination status. That law, known as HB702, also made it illegal for employers to require vaccines as a condition for employment. The Montana Department of Labor and Industry has not provided updated guidelines on navigating the conflict.

The state law was opposed by the Montana Hospital Association and other health care organizations in Montana. The association said on Thursday that their legal counsel will evaluate the new federal regulations when they are released to clarify the conflict between federal and state law.

But federal law will likely take precedent over state law if the two directly conflict, said University of Montana Constitutional law professor Anthony Johnstone on Friday.

"In the end it does come down to the supremacy clause," Johnstone said. "If a state like Montana has a contrary law, that law must give way."