The chief judge on the Sixth Circuit Court of Appeals just issued a forceful dissent declaring President Joe Biden’s coronavirus vaccine mandate for employers with more than 100 employees unconstitutional.
The big question is whether this is a sign of things to come.
What’s going on?
Just recently, the Occupational Safety and Health Administration (OSHA) announced a rule implementing Biden’s mandate. According to that rule, employers with 100 employees or more must either force their employees to get vaccinated against the coronavirus or to undergo regular coronavirus testing. Failure to do so by early January will result in hefty fines for violating employers and likely termination for non-complying employees.
Following OSHA’s announcement of this new rule, a number of lawsuits were filed against it. One of these lawsuits has even resulted in a stay being put on the rule, meaning that it cannot be enforced while its legality is being litigated.
The Sixth Circuit Court of Appeals has been selected, by a lottery, to oversee all of the legal challenges to this mandate.
The Daily Wire, one of the many entities challenging OSHA’s rule, recently submitted a preliminary motion asking that the court hear the case “en banc,” meaning with all 16 judges on the court rather than just a three-judge panel.
In an 8-8 decision, the court denied that motion. But, what is getting a lot of attention is the dissent that was written by Chief Judge Jeffrey Sutton.
Sutton’s argument, and Bush’s follow up
In his dissent, Sutton suggested that OSHA’s rule is illegal because Congress has never given the Secretary of Labor and OSHA the authority to implement such a vaccine requirement.
It is one thing to tell a worker to don a mask at the start of a hazard-filled shift and doff it at the end. It is quite another to tell a worker to vaccinate on the basis of a risk that exists whether he is on the clock or off and that amounts to a medical procedure that cannot be removed at the end of the shift. Confirming the point, the Secretary of Labor has never imposed a vaccine mandate or for that matter a vaccinate-or-test mandate on American workers. The [Occupational Safety and Health Act] does not clearly give the Secretary power to regulate all health risks and all new health hazards, largely through off-site medical procedures, so long as the individual goes to work and may face the hazard in the course of the workday.
Sutton was joined in his dissent by another judge, John Bush, who, in addition to joining Sutton’s dissent, wrote a dissent of his own taking Sutton’s argument a step further. Bush argued that Congress, Constitutionally, would not be able to give such authority to OSHA.
Whether it uses a clear statement or not, Congress likely has no authority under the Commerce Clause to impose, much less to delegate the imposition of, a de facto national vaccine mandate upon the American public. Such claimed authority runs contrary to the text and structure of the Constitution and historical practice. The regulation of health and safety through compulsory vaccination is a traditional prerogative of the states — not the domain of Congress and certainly not fodder for the diktat of a federal administrative agency. Because we should have granted initial hearing en banc to vindicate the correct understanding of the Constitution and to cabin OSHA to its legitimate role, I respectfully dissent.
Now, it has to be admitted that these are only dissenting opinions, and the fact that Sutton and Bush were willing to proclaim on the matter would probably suggest that they are not going to be part of the three-judge panel that decides the case. But, on the other hand, Sutton’s and Bush’s arguments might be a sign of things to come, and, if they are, this spells bad news for Biden and his mandate.