President Joe Biden in September announced his plan to impose a strict vaccine mandate on private businesses with more than 100 employees, and the Occupational Safety and Health Administration (OSHA) finally issued a temporary emergency rule in that regard on Nov. 4.
Dozens of states immediately filed lawsuits and the 5th Circuit Court of Appeals quickly issued a temporary stay that was then challenged by the Biden administration, only for the 5th Circuit to more thoroughly knock down the OSHA rule with an order reaffirming the stay, the Washington Examiner reported.
The three-judge panel, led by a Trump-appointed judge, made it abundantly clear, in no uncertain terms, that the OSHA mandate, for numerous reasons, is unlawful and unconstitutional, and has no legislative authority or basis on which to stand.
As such, the OSHA mandate will remain temporarily blocked “pending adequate judicial review” of an underlying request for a permanent injunction, and OSHA itself was specifically ordered to “take no steps to implement or enforce the Mandate until further court order.”
As noted, OSHA issued its “emergency temporary standard” (ETS) vaccine mandate on Nov. 4 — to take effect Jan. 4, 2022 — that was then immediately challenged by at least 27 Republican-led states across the country and resulted in the initial stay from the 5th Circuit Court on Nov. 6, the Associated Press reported, due to “grave statutory and constitutional issues.”
Biden’s Department of Justice (DOJ) asked the court to reconsider and lift the stay, arguing that it was unnecessary since the rule hadn’t taken effect yet and added that, if left in place, the stay could “cost dozens or even hundreds of lives per day” from COVID-19 infections.
Further, the DOJ asserted that any claimed harms as a result of the mandate were “speculative and remote,” and more than outweighed by the government’s interest in ostensibly protecting employees from the risk posed by the viral contagion.
5th Circuit smackdown
But the 5th Circuit panel was decidedly unmoved by the DOJ’s arguments, as was made clear in a thorough, 22-page beatdown of the OSHA rule authored by Judge Kurt Engelhardt that attacked the ETS from multiple angles, and found it wanting for legitimacy at each turn.
The judge pointed out that OSHA itself, in a June 2020 lawsuit, had declared that such an ETS was “not necessary,” that Biden himself had previously vowed to never impose a vaccine mandate, and that the rule itself was simply outside the scope of authority that Congress had delegated to OSHA.
Engelhardt also noted rather ironically how the mandate was simultaneously “overinclusive,” in that it was broadly applicable across all industries without regard to actual risk, as well as “underinclusive,” in that it also only applied to large companies but seemingly ignored the purportedly “grave danger” of COVID-19 faced by employees of businesses with fewer than 100 workers.
As for the dubious constitutionality of the rule, the judge even cited a retweet from Biden Chief of Staff Ron Klain of an MSNBC host heralding the OSHA rule as a great “work-around” of the apparently known fact that the administration likely lacked the authority to impose vaccine mandates on the populace at large.
After noting at length the numerous ways in which the “staggeringly overbroad” OSHA mandate was almost certainly illegal and unconstitutional, and based on his determination that plaintiffs would likely both suffer “irreparable harm” and succeed on the merits, Judge Engelhardt reaffirmed the previously issued stay, and added in the specific warning that OSHA refrains from trying to implement or enforce the rule.