Last week, the Fifth Circuit Court of Appeals reaffirmed its initial suspension of Joe Biden’s vaccination warrant. The court ordered that “the administration’s application of vaccination and COVID-19 testing to occupational safety and health; the temporary emergency standard” remains. “ pending proper judicial review of the applicants’ underlying claims for a permanent injunction. “It further ordered that” OSHA not take steps to implement or enforce the warrant until further court order. “
Behind this language lies a strong criticism of Biden’s mandate. Opinion is here.
One of the factors a court considers in deciding whether to grant a stay is the likelihood that the party requesting it will prevail on the merits. The petitioner must strongly demonstrate the likelihood of success.
The fifth circuit found that the petitioners in this case made such a demonstration. This finding means that the Biden administration will almost certainly lose in the Fifth Circuit when the court finally adjudicates on the merits.
The court cited a “multitude of reasons” why those who contest the warrant are likely to be successful on the merits. The first, which he described as “obvious”, is this:
The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to ensure Americans “safe and healthy working conditions and to preserve our human resources.” See 29 USC § 651 (Statement of Results and Mission Statement and Policy). It was not – and probably could not be, according to the Commerce Clause and the doctrine of non-delegation – the intention to authorize an occupational safety administration in the deep recesses of the federal bureaucracy to make sweeping statements on public health issues that matter. every member of society in the deepest of ways.
Furthermore, the “sweeping statements” implicit in the OSHA order are grossly flawed. For example, the court noted that the warrant is both over-inclusive and under-inclusive. On the one hand, it covers employees in nearly all industries, regardless of their exposure risk (there is “little attempt to explain the obvious differences in the risks they face, for example, a security guard on a lonely night.
shift, and a butcher who works shoulder to shoulder in a cramped warehouse “) and” does not exempt those with natural immunity. “On the other hand, it arbitrarily excludes employers with fewer than 100 employees.
Fatal to the warrant, the court found that its enactment “grossly exceeds the authority of OSHA.” He noted that OSHA’s statutory authority to set temporary emergency standards “is an ‘extraordinary power’ that must be ‘gently exercised’ only in certain ‘limited situations’.”
To meet this standard, an emergency order must:
(1) addressing “substances or agents deemed to be toxic or physically harmful” —or “new hazards” —at the workplace; (2) show that workers are exposed to such “substances”, “agents” or “new hazards” in the
work place; (3) demonstrate that such exposure places workers in “grave danger”; and (4) be “necessary” to alleviate employee exposure to seriously dangerous workplace hazards.
An airborne virus such as covid falls outside the first two of those elements, the court said. He pointed out that the virus is, and has been for some time, widely present in society (and therefore not only in the workplace) and is not dangerous to the lives of the vast majority of employees. Therefore, the court called it “a transparent trait to characterize the virus as a” new danger “or” toxic. “Indeed, OSHA previously stated in court that the virus is a” recognized danger. “
On the “grave danger” element, the court pointed out that Biden had previously refused to impose a vaccination warrant. He said:
Since it is generally “arbitrary or capricious” to “depart from a previous policy sub silentio”, agencies must typically provide a “detailed explanation” to contradict a previous policy. . . .
The Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccination warrants before they were against one.
As regards the element of necessity, the Court again noted the excessive inclusion of the mandate. Whatever the need to have a fully vaccinated workforce for some jobs, it is not necessary to have one for others.
If anything, the under-inclusion of the mandate cuts even more vigorously the claim of necessity. If this is a real emergency, why exempt smaller employers? The court noted that “such an under-inclusion is often seen as a telltale sign that the government’s interest in issuing a restrictive declaration of liberty is not actually ‘consistent’.”
In this case, the court stated in a statement that goes to the heart of the matter:
The under-inclusive nature of the mandate implies that The real purpose of the mandate is not to improve workplace safety, but instead to accelerate vaccine adoption by any means necessary..
The court’s farewell coup is this:
The Constitution gives Congress limited legislative power. For more than a century, Congress has routinely used this power to delegate policy specifics and technical details to executive agencies charged with implementing the political principles established by Congress.
In the mine case series – a department of transportation that regulates trucking on an interstate highway or an aviation agency that regulates an airplane cabinet – this is generally good and good. But health agencies don’t do housing policy and occupational safety administrations don’t do health policy.
In trying to do so here, OSHA goes against the statute from which it draws its power and, arguably, violates the constitutional framework that safeguards our collective freedom.
I can’t end this post without pointing out that Biden’s best adviser, Ron Klain, has made his way into opinion. In a footnote (# 13; see also # 18)), the court noted that Klain “retweeted MSNBC anchor Stephanie Ruhle’s tweet stating: ‘OSHA executing this vaxx warrant as Workplace safety emergency rule is the ultimate solution for the federal government. Government to require vaccinations. ‘”The court refers to Klain’s retweet of the OSHA warrant description as a” workaround “to support his opinion that OSHA’s alleged basis for issuing this warrant is “pretext”.
Klain’s “own goal” didn’t cost Biden the win here, but it did help boost the score.