The judge says that the public interest has been served by maintaining the constitutional structure and the freedom of individuals even when it frustrates government officials.
Friday, the Fifth Circuit Court of Appeal reaffirmed his tenure on President Joe Biden’s federal COVID vaccine mandate for businesses with 100 or more employees, clearly stating that “OSHA takes no steps to implement or enforce the mandate until further court order.”
“On November 6, 2021, we decided to suspend the mandate pending a briefing and an accelerated judicial review”, the opinion States. “Having conducted that expedited review, we reaffirm our initial stay.”
Mississippi is among the states that have presented the legal action to challenge federal mandates on November 5th. The next day, the appeals court issued the suspension. Eleven states, along with companies, have filed the petition arguing that the federal mandate of the vaccine was unconstitutional.
Attorney General Lynn Fitch says she will continue to fight this term of the president and the other two that require vaccination of federal contractors and federal workers.
The fifth circuit confirmed its tenure of Biden vaccine mandate on employers with over 100 employees. I will continue to fight this and Biden’s two other vaccine warrants until they can no longer threaten your freedom … or your job. Read more here: https://t.co/PUAYdhqBGa pic.twitter.com/qD1taCVSZ1
– Lynn Fitch (@LynnFitchAG) November 13, 2021
District Judge Kurt Engelhardt writes that in its 50-year history, OSHA has only issued ten temporary emergency standards. Six were challenged in court and only one survived.
“The reason for the rarity of this form of urgent intervention is simple: the courts and the Agency have agreed for generations that ‘[e]Extraordinary power is vested in [OSHA] under the emergency provisions of the Occupational Safety and Health Act, “so”[t]”Power must be exercised gently, and only in those emergency situations that require it,” says Judge Engelhardt.
He goes on to say that the federal mandate is “fatally flawed in its own terms” in that it is overly inclusive and under-inclusive as it refers to the arbitrary way in which businesses impact a certain number of employees.
Judge Engelhardt also questions the “emergency” nature of the warrant, given that the pandemic is nearly two years old. He also points out that OSHA itself spent nearly two months responding to the president’s order.
The judge goes on to wonder if COVID now represents the kind of “grave danger” needed to impose such broad mandates, calling it too broad.
Furthermore, the view argues that the warrant likely exceeds federal government authority under the trade clause because it regulates non-economic inactivity that is exactly within the police power of states, and the courts have rejected the use of the trade clause to exercise police power.
Judge Engelhardt writes that a stay is firmly in the public interest.
“From economic uncertainty to workplace conflict, the mere specter of mandate has contributed to untold economic upheavals in recent months. Of course, the principles at stake when it comes to the mandate cannot be reduced to dollars and cents ”, concludes the judge. “The public interest is also served by maintaining our constitutional structure and by maintaining the freedom of individuals to make intensely personal decisions according to their own convictions, even, or perhaps in particular, when such decisions frustrate government officials.”