Even before OSHA had announced the suspension of Biden’s illegal vaccine mandate earlier today, I recorded the Situation Update podcast late last night (see below), predicting that the Biden vaccine mandate was doomed
BY CAROLYN HENDLER, JD
republished below in full unedited for informational, educational & research purposes:
On Nov. 8, 2021, the U.S. Court of Appeals for the Fifth Circuit, covering parts of Texas, Mississippi, and Louisiana,1 put a temporary stop to the Biden administration’s vaccine mandate announcing…
Because the petitions give cause to believe there are grave statutory and constitutional issues with the mandate, the mandate is hereby STAYED pending further action by this court.2
The Plaintiffs in this matter include individuals, businesses, and several states such as Louisiana, South Carolina, Texas, Mississippi, and Utah and the Defendants are the Occupational Safety and Health Administration (OSHA), the U.S. Department of Labor et al.
The Biden administration mandate has OSHA overseeing a requirement that all employers with a minimum of 100 employees ensure that employees are either vaccinated by Jan. 4, 2022, or tested weekly and all unvaccinated workers must wear a face mask. These requirements will affect 84 million workers.3
Plaintiffs argue that OSHA does not have the authority to implement a vaccine mandate as its authority is limited to work-place related hazards and the risk presented by COVID-19 is, “a society-wide danger.”4 Plaintiffs also allege that the mandate which applies to workplaces with 100 or more employees is arbitrary as the risk COVID-19 presents in the workplace depends on the age and health of employees rather than the number of employees.
OSHA was established in 1970 to “assure safe and healthful conditions for working men and women by setting and enforcing standards and providing training, outreach, education, and compliance assistance.” Since then, OSHA regulations have reduced workplace fatalities by 63 percent.5
A senior Biden administration official said:
OSHA has broad authority to issue and enforce health and safety standards to protect workers in staying safe and healthy on the job—like precautions against bloodborne diseases, excessive noise, and falls from dangerous heights—and now, getting vaccinated against a virus that has taken more American lives than World War One, World War Two, the Vietnam War, and 9/11 combined.6
However, the threat of contacting COVID-19 is a universal threat that can affect a person in their home, school, work, at a restaurant, store, or any place there is potential contact with an infected individual. Because the threat of contracting the virus is not exclusive to the workplace, the Plaintiffs contend that OSHA should not be in charge of making sure businesses are compliant with the Biden administration’s vaccine mandate.
In their request for an Emergency Stay, Plaintiffs wrote,
In an attempt to impose a nationwide vaccination mandate without approval from Congress, the executive branch has couched its COVID-19 vaccine mandate as an emergency workplace rule affecting nearly 100 million Americans. But the ETS is neither a workplace rule nor responsive to an emergency…Vaccination status is a public health issue that affects people throughout society; it is not a hazard particular to the workplace. And there is no need to use an emergency rule to address a pandemic that has been going on for nearly two years. Congress did not grant OSHA such sweeping powers in its authorizing statute.7
The Biden administration maintains that enforcing the vaccine mandate is well within the purview of OSHA as that the OSH Act grants OSHA the right to take quick action when an emergency situation threatens workers’ safety. The White House, seemingly ignoring the U.S. Court of Appeals decisions, is advising businesses to continue with the vaccine mandate despite the U.S. Court of Appeals decision.
White House deputy press secretary, Karine Jean-Pierre, said:
People should not wait. They should continue to move forward and make sure they’re getting their workplace vaccinated.8
In its response to the Court of Appeals, the Biden administration argued that Plaintiffs' grievances were premature because the vaccine mandate deadline is not until January. They argued that a panel of experts concluded that the vaccine mandate was necessary to reduce the spread of COVID-19 in the workplace and that failing to enforce the mandate “would likely cost dozens or even hundreds of lives per day.”9 10
The Biden administration further contends that the vaccine mandate supersedes state and local laws which may ban vaccine mandates, testing and masks.11
At this time, it is unclear whether the U.S. Court of Appeals' decisions halt the vaccine mandate only in Louisiana, Mississippi, South Carolina and Texas or if it is a nationwide stoppage of the vaccine mandate.12
The 5th Circuit Court of Appeals Affirms its Decision
On November 12, after reviewing the Defendant’s response, the same court unanimously affirmed its earlier decision to halt the vaccine mandate stating that it was “staggeringly overbroad” and “grossly exceeds OSHA’s statutory authority.”13
In its lengthy and thoughtful opinion, the court highlighted the fact that it is rare for OSHA to issue an emergency temporary standard (ETS) like this vaccine mandate pointed out the fact that only one of the ten ETS issued in OSHA’s 50-year history survived a court challenge.14
When considering a stay, courts look at four factors: (1) the likelihood the requesting party will ultimately succeed on the merits; (2) whether denying a stay would cause the requesting party irreparable injury; (3) whether the opposing party would be substantially injured by a stay; and (4) consideration of the public’s interest. In this matter, the court determined that all of these factors favored a stay.15
The Vaccine Mandate is Both Over and Under inclusive
The Court implied that it is likely that it would ultimately be found that President Biden’s vaccine mandate violates the U.S. Constitution, but stated that even if it wasn’t, the mandate was “fatally flawed” by being both overinclusive as it applies to all employers with more than 99 employees regardless of the circumstances and underinclusive by not applying to employers with less than 99 employees. In effect asking the question, if the government’s intention is to save employees from the imminent grave danger posed by the COVID-19 virus, why doesn’t it apply to all places of employment regardless of size?
President Biden’s vaccine mandate is authorized to be enforced by OSHA under its emergency temporary standard (ETS) statute which allows the mandate to take effect immediately without the typical six-month public comment waiting period. Historically, courts have found that OSHA ETS’s are “an unusual response to exceptional circumstances” that should be “delicately exercised” in only certain “limited circumstances.” The Court noted that rather than being “delicately exercised,” the “Mandate is a one-size-fits-all sledgehammer.”16
The Court concluded that the vaccine mandate is “staggeringly overbroad” as it equally applies to a truck driver alone in his truck all day, a naturally immune office worker and an unvaccinated elderly employee who all have different degrees of vulnerability to the virus and therefore the mandate defies common sense.17
Because the vaccine mandate fails to cover even the most vulnerable employee who may work for an employer with less than 99 employees, the court found it to be underinclusive as well and questioned the government’s assertion that this mandate was addressing a true emergency if it didn’t apply to all workers.
The Court said:
But this kind of thinking belies the premise that any of this is truly an emergency. Indeed, under inclusiveness of this sort is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is in not fact “compelling”… The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.18
The Court went so far as to question whether COVID-19 continues to present a grave danger in the workplace for all employees covered by the mandate considering the fact that 78 percent of all Americans over the age of 12 are vaccinated and according to the Biden administration, COVID-19 vaccines protect recipients from severe illness and death.19
The Vaccine Mandate Likely Violates the U.S. Constitution
The vaccine mandate, according to the Court, would likely be found to violate the Commerce Clause of the U.S. Constitution as it, “regulates noneconomic inactivity” (the decision to get a vaccine or a COVID-19 test) “that falls squarely within the State’s police power.”20 It is well-settled by the courts that mandating a vaccine or requiring testing belongs to the states under their police powers.21
The Court expressed concern over whether the vaccine mandate violates the separation of powers by attempting “to control individual conduct under the guise of workplace regulation.”22 The vaccine mandate exceeds OSHA’s authority and neither the Biden administration nor the Appellate Court has the ability to expand the agency’s authority in this manner.23
Finally, the Court concluded that denying a stay would cause the Plaintiffs irreparable harm by denying them their constitutional rights and imposing a significant financial burden on employers while causing no harm to the Defendants.
The Cases Concerning the Biden Administration’s Vaccine Mandate Will Be Consolidated
This lawsuit opposing the Biden Administration’s mandate is one of several filed in five U.S. Court of Appeals and the D.C. Court of Appeals by at least 27 states.24 25 When the same matter is brought before multiple federal courts at the same time, the cases are consolidated and assigned to a court by way of a blind lottery system. The decision as to which jurisdiction will ultimately decide this issue could be made on or about Nov. 16, 2021.26 27
In order to increase the odds, they will get a favorable outcome in this litigation, it has been reported that several labor unions are also filing lawsuits regarding the vaccine mandate in states where the court may be more favorable to upholding the mandate. CNN stated:
Essentially, in order to have a favorable circuit court considered, hopeful parties have to buy a lottery ticket.28
Lawyer Seam Marotta said the union lawsuits…
[A]re all about maximizing the odds of a sympathetic panel of three judges to hear the case. While the Republican led-states have filed in courts with a majority of judges appointed by a Republican president, the Unions are targeting courts with a majority—or near majority—of judges appointed by a Democratic President.
It is astonishing that the fate and freedom of approximately 84 million U.S. workers lies in the luck of the draw.
Click here to view References:
1 Library of Congress. U.S. Federal Appellate Courts: Records and Briefs.
2 Stieber Z. Federal Court Blocks Biden Administration’s Private Business COVID-19 Vaccine Mandate. The Epoch Times Nov. 7, 2021.
3 The White House. Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies. Nov. 4, 2021.
4 Stieber Z. Federal Court Blocks Biden Administration’s Private Business COVID-19 Vaccine Mandate. The Epoch Times Nov. 7, 2021.
5 U.S. Department of Labor. All About Occupational Safety and Health Administration.
6 The White House. Background Press Call on OSHA and CMS Rules for Vaccination in the Workplace. Nov. 4, 2021.
7 Stieber Z. Federal Court Blocks Biden Administration’s Private Business COVID-19 Vaccine Mandate. The Epoch Times Nov. 7, 2021.
8 Kimball S. White House tells businesses to proceed with vaccine mandate despite court-ordered pause. CNBC Nov. 8, 2021.
10 Williams P. Biden administration urges appeals court not to block new vaccine rules for companies. NBC News Nov. 8, 2021.
11 Kimball S. White House tells businesses to proceed with vaccine mandate despite court-ordered pause. CNBC Nov. 8, 2021.
12 Mulvihill G. Biden Team Defends Worker Vaccine Rule, Wants Cases Combined. U.S. News & World Report Nov.8, 2021.
13 Fritze J. Federal appeals court keeps on hold Bidens COVID19 vaccine or testing rule for large companies. USA Today Nov. 12, 2021.
14 BST Holdings et al. v. Occupational Safety and Health Administration et al. Case 21-60845 Document 00516091902 Nov. 12, 2021.
24 NPR. Appeals court temporarily halts Biden vaccine mandate for larger businesses. Nov. 6, 2021.
25 Kimball S. White House tells businesses to proceed with vaccine mandate despite court-ordered pause. CNBC Nov. 8, 2021.
27 Wliiams P. Biden administration urges appeals court not to block new vaccine rules for companies. NBC News Nov. 8, 2021.
29 de Vogue A. Liberals are buying their tickets in hopes of winning the vaccine mandate lawsuit lottery. CNN. Nov. 12, 2021.