The Biden administration’s Covid 19 vaccine mandates are in serious legal trouble, facing a federal appeals court system that doesn’t seem to buy justifications for having OSHA require private employers to ensure their workers are vaccinated.
At the time this was written, the state of the controversy was such that all of the lawsuits across the country brought against the OSHA mandate had been gathered together to be heard by a single appeals court, — the Sixth Circuit — widely considered as one of the most conservative of the circuits.
Of the 27 judges currently serving on the Sixth Circuit, 20 of them were appointed by Republican Presidents going back to Ronald Reagan, including six who were nominated by Donald Trump.
This action follows a preliminary injunction granted by a three-judge panel of the Fifth Circuit federal appeals court who in a written decision made it stunningly clear how much they believe the OSHA vaccine mandate goes far beyond the agency’s authorized scope of action, and also violates provisions of the Constitution
The injunction was handed down on Nov. 6, one day after the OSHA action was announced. On Nov. 16, in a process led by Supreme Court Justice John Roberts, all of the lawsuits filed across the country in different federal appeals courts by everyone from 26 state attorneys general to private employers were gathered together into a single proceeding in one of the appeals courts, which was chosen at random.
The Fifth Circuit panel noted that in OSHA’s 50-year history, it has issued just 10 such Emergency Temporary Standards (ETS), six of which were challenged in court and only one of them survived.
Federal agencies normally are expected to impose regulatory burdens only after following an extensive and careful process established by federal law over the years.
That process is designed to provide sufficient time for public comment and discussion, and to address the impacts the rule could have on the environment and small businesses, before a proposed rule can become a federal regulation.
The administration knew these limitations quite well. One day after he was inaugurated on Jan. 20, Biden signed an executive order directing OSHA to issue a different ETS imposing new requirements on employers regarding Covid workplace practices regarding testing, masking, and how to deal with employees who contract the disease.
Those requirements appeared months late due to concerns about the limitations on how far OSHA could go, and the eventual ETS was watered down and applied only to healthcare workers.
Regarding the more recent OSHA vaccine ETS, the three judges issuing the preliminary injunction said, “The mandate’s stated impetus – a purported ‘emergency’ that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to – is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.”
They also said that the Constitution did not “authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”
Noting that the Covid danger extends to all workplaces and that an estimated 78% of the U.S. population is partially or fully vaccinated, they described the ETS as “staggeringly overbroad.”
The Fifth Circuit panel’s unsparing view of administration’s overreach in attempting to use OSHA to impose a universal vaccine mandate is detailed in the written decision.
“The mandates strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).”
The three judges also went on to add that “a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains – the mandate fails almost completely to address, or even respond to, much of this reality and common sense.”
Unimpressed with the President and his chief of staff’s blatant admissions that using OSHA was a legal “workaround” to impose a universal vaccine requirement, the judges said, “The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even, or perhaps particularly, when those decisions frustrate government officials.”