The court defines the requirements as “fatally imperfect”

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Protesters hold placards during a protest against Covid-19 warrants outside the General Motors (GM) Tech Center in Warren, Michigan, United States, on Wednesday, November 3, 2021.

Mathew Hatcher | Bloomberg | Getty Images

A federal appeals court called the president by Joe Biden “fatally flawed” and “incredibly exaggerated” private enterprise vaccines and testing requirements, arguing that the requirements likely exceed federal government authority and raise “serious constitutional concerns.”

The U.S. Fifth Circuit Court of Appeals, in an opinion issued Friday evening, reiterated its decision to suspend enforcement of the requirements, another sign that they may not survive judicial scrutiny.

The appeals court, considered one of the most conservative in the country, originally held the requirements on November 6 pending review, in response to complaints from the Republican Attorneys General of Texas, Louisiana, Mississippi, South Carolina and Utah, as well as to several private companies.

Although the court has not yet ruled on the constitutionality of the requirements, the panel of three judges has made it clear that lawsuits seeking to overturn the warrants “are likely to be successful on the merits.” They criticized the requirements as “a one-size-fits-all hammer that makes almost no attempt to explain differences in workplaces (and workers).”

The Occupational Safety and Health Administration, which deals with occupational safety for the Department of Labor, has developed the requirements under the emergency authority established by Congress. That authority allows the agency to shorten the process for issuing occupational safety and health standards, which normally last for years.

OSHA may use its emergency authority if the Secretary of Labor determines that a new safety or health standard is needed to protect workers from a “major hazard” represented by a new hazard. Judges on Friday questioned whether Covid poses a serious danger to all workers covered by the requirements and argued that OSHA already has tools it can use aside from an emergency safety standard.

The Biden administration on Monday asked the court to lift the hiatus, warning that delaying implementation “would likely cost dozens or even hundreds of lives a day” as the virus spreads. White House officials have repeatedly stated that Covid clearly poses a grave danger to workers, pointing to the staggering death toll from the virus and high levels of transmission in U.S. counties.

More than 750,000 people have died in the United States from the virus since the start of the pandemic and more than 46 million have been infected, according to data from the Centers for Disease Control and Prevention. More than 1,000 Americans die every day from the virus, and nearly 80,000 are infected on average every day, according to data from Johns Hopkins University.

The White House has told businesses to move forward with implementing the requirements even as the legal drama unfolds in the courts. Companies with 100 or more employees have until January 4th to ensure that their staff have received the necessary vaccinations for full vaccination. After that date, unvaccinated employees must submit negative Covid tests weekly to enter the workplace. Unvaccinated employees must start wearing masks indoors in the workplace starting December 5th. 5.

The Biden administration faces a series of lawsuits seeking to overturn mandates. Republican attorneys general in at least 26 states challenged the requirements in five federal appeals courts. The cases will be joined in a single court through a random selection among the jurisdictions in which the cases have been filed. The Justice Department said earlier this week that it expects the random selection to take place no earlier than Tuesday.

David Vladeck, a law professor at Georgetown University, told CNBC that there is a “high probability” that the case will end up in the Supreme Court, where there is a conservative majority.

“There are judges in court who want to rein in the administrative state and this is one case where these concerns are likely to come to the fore,” Vladeck told CNBC on Monday.

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