A federal appeals court has called the Biden administration’s vaccine mandate “fatally flawed” and “staggeringly overbroad,” and said the requirements raise “serious constitutional concerns.”
In an opinion issued Friday evening, the U.S. Court of Appeals for the Fifth Circuit reaffirmed its decision to press pause on the implementation of the requirements.
The appellate court originally paused the requirements of the mandate on Nov. 6 pending review, in response to challenges by the Republican attorneys general of Texas, Louisiana, Mississippi, South Carolina and Utah, as well as several private companies.
Justice Gorsuch wrote in the opinion that society’s interest in slowing the spread of COVID-19 “cannot qualify as [compelling] forever,” for “[i]f human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”
CNBC reports that while the court has not yet ruled on the constitutionality of the requirements, the three-judge panel made clear that the lawsuits seeking to overturn the mandates “are likely to succeed on the merits.”
The Occupational Safety and Health Administration — which polices workplace safety for the Labor Department, developed the requirements under emergency authority, and was established by Congress — has authority that allows the agency to shortcut the process to issue workplace safety and health standards.
The opinion states the courts have uniformly observed that OSHA has the authority to establish emergency temporary standards under “extraordinary power” that is to be “delicately exercised” in only certain “limited situations.” The Justices wrote that the Biden administration’s mandate is anything but a “delicate exercise” of this “extraordinary power.”
The Justices wrote in the opinion that OSHA attempts to “to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace)” in the mandate, but other cases involving OSHA shed further light on the intended meaning of these terms.
The Biden administration had asked the court on Monday to lift the pause, warning that delaying implementation “would likely cost dozens or even hundreds of lives per day” as the virus spreads, CNBC reports.
Any argument OSHA may make that COVID-19 is a “new hazard” would directly contradict OSHA’s prior representation to the D.C. Circuit that “[t]here can be no dispute that COVID-19 is a recognized hazard,” the Justices wrote.
The Justices wrote in the opinion that a natural first step in enacting a lawful emergency temporary standard is to show that employees covered are exposed to dangerous substances, agents, or hazards.
The Justices wrote that OSHA’s stated view “that a finding of ‘grave danger’ to support an ETS be based upon exposure in actual levels found in the workplace” as it pertains to the vast majority of private employees covered by the mandate fails to meet the threshold burden of showing workplace [COVID-19] ‘clusters’ and ‘outbreaks’ and other significant ‘evidence of workplace transmission’ and ‘exposure.’”
“… OSHA is required to make findings of exposure — or at least the presence of COVID-19 — in all covered workplaces,” the opinion states. “Of course, OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have ‘outbreaks.'”
The Justices wrote that the COVID-19 vaccine mandate is “staggeringly overbroad” and fails to consider the threat of COVID-19 is more dangerous to some employees than to other employees and is also underinclusive.
Aside from only affecting workers in offices of 100 or more, the Justices wrote: “The Mandate is also underinclusive in the solutions it proposes. Indeed, even in its fullest force, the Mandate cannot prevent vaccinated employees from spreading the virus in the workplace, or prevent unvaccinated employees from spreading the virus in between weekly tests.”
The Justices state the Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power — the opinion states a person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. “… To mandate that a person receives a vaccine or undergo testing falls squarely within the States’ police power,” the opinion reads.
The Federal Appeals Court said that halting — or staying — the mandate will do OSHA no harm whatsoever, while it will greatly benefit the public.
“…. A stay will do OSHA no harm whatsoever,” the opinion reads. “Any interest
OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS
is illegitimate. Moreover, any abstract “harm” a stay might cause the Agency pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.
“For similar reasons, a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months. Of course, the principles at stake when it comes to the Mandate are not reducible to dollars and cents,” the Justices wrote. “The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials.”
“For these reasons, the petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration’s ‘COVID-19 Vaccination and Testing; Emergency Temporary Standard’ remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction,” the opinion reads.
“In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandateuntil further court order,” the opinion reads.
Circuit Judge Stuart Kyle Duncan concurred in granting a stay, and said the following:
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