Last week, the Fifth Circuit Court of Appeals reaffirmed its initial stay of Joe Biden’s vaccine mandate. The Court ordered that “Enforcement of the Occupational Safety and Health Administration’s ‘COVID-19 Vaccination and Testing; Emergency Temporary Standard’ remain stayed pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.” It further ordered that “OSHA take no steps to implement or enforce the Mandate until further court order.”
Behind this language lies a forceful critique of the Biden mandate. The opinion is here.
One of the factors a court considers in deciding whether to issue a stay is the likelihood that the party seeking it will prevail on the merits. The petitioner must make a strong showing of likelihood of success.
The Fifth Circuit found that the petitioners in this case made that showing. This finding means that the Biden administration almost surely will lose in the Fifth Circuit when the court makes its definitive ruling on the merits.
The court cited a “multitude of reasons” why those challenging the mandate will likely succeed on the merits. The first one, which it described as “obvious,” is this:
The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651 (statement of findings and declaration of purpose and policy). It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.
Furthermore, the “sweeping pronouncements” implicit in OSHA’s order are badly flawed. For example, the court noted that the mandate is both over-inclusive and under-inclusive. On one hand, it covers employees in nearly every industry regardless of their risk of exposure (there is “little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night
shift, and a meatpacker working shoulder to shoulder in a cramped warehouse”) and “doesn’t exempt those with natural immunity.” On the other hand, it arbitrarily excludes employers with fewer than 100 workers.
Fatally to the mandate, the court found that its promulgation “grossly exceeds OSHA’s authority.” It noted that OSHA’s statutory authority to establish emergency temporary standards “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’”
To meet this standard, an emergency order must:
(1) address “substances or agents determined to be toxic or physically harmful”—or “new hazards”—in the workplace; (2) show that workers are exposed to such “substances,” “agents,” or “new hazards” in the
workplace; (3) show that said exposure places workers in “grave danger”; and (4) be “necessary” to alleviate employees’ exposure to gravely dangerous hazards in the workplace.
An airborne virus like covid does not fall within the first two of these elements, the court said. It pointed out that the virus is, and has for some time been, widely present in society (and thus not unique to the workplace) and is non-life-threatening to a vast majority of employees. Thus, the court called it a “transparent stretch to characterize the virus as either a “new hazard” or a “toxic” one. Indeed, OSHA has previously said in court that the virus is a “recognized hazard.”
On the element of “grave danger,” the court pointed out that Biden had earlier refused to impose a vaccine mandate. It said:
Because it is generally “arbitrary or capricious” to “depart from a prior policy sub silentio,” agencies must typically provide a “detailed explanation” for contradicting a prior policy. . . .
The Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one.
As to the element of necessity, the court again noted the over-inclusiveness of the mandate. Whatever necessity there may be to have a fully vaccinated workforce for some jobs, it isn’t necessary to have one for others.
If anything, the under-inclusiveness of the mandate cuts even more forcefully against the claim of necessity. If this is a true emergency, why exempt smaller employers? The court noted that “under-inclusiveness of this sort is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact ‘compelling.’”
In this case, said the court in a statement that goes to the heart of the matter:
The under-inclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.
The court’s parting shot is this:
The Constitution vests a limited legislative power in Congress. For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down.
In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy.
In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.
I can’t conclude this post without pointing out that top Biden adviser Ron Klain made his way into the opinion. In a footnote (#13; see also #18)), the court noted that Klain “retweeted MSNBC anchor Stephanie Ruhle’s tweet that stated, ‘OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.’” The court references Klain’s retweet of the description of the OSHA mandate as a “workaround” to support its view that OSHA’s alleged basis for issuing this mandate is “pretextual.”
Klain’s “own-goal” didn’t cost Biden victory here, but it helped run up the score.