A Circuit ruling has set a formidable precedent for judicial scrutiny of Biden administration policies on Covid and on constitutional questions in general.
It was with scorn and constitutional alarm that the Fifth Circuit Court of Appeals on November 12 turned aside the Biden administration’s attempt to require Covid vaccinations for the nation’s workforce. The ruling has set a formidable precedent for judicial scrutiny of Biden administration policies concerning Covid, as well as constitutional questions in general. In order to avoid the drawn-out and detailed procedures, including public comment, required by executive-branch administrative law, the administration commandeered a rarely used power of the Department of Labor’s Occupational, Safety, and Health Administration (OSHA). Under a regulatory authority unique to itself, OSHA may impose an Emergency Temporary Standard (ETS) on the nation’s workplaces and have it go into effect immediately. The ETS vaccination mandate OSHA promulgated on November 5 required all private businesses of 100 or more employees in the country to have their workforces vaccinated against Covid or mask and have weekly Covid tests. On September 9, President Biden had imposed a similar vaccination requirement on all federal employees. In its 50-year history, OSHA has used its ETS emergency powers only on ten occasions, for example, concerning asbestos and benzene. It has never done so to require national immunizations. Also, as the Circuit pointed out, courts overturned five of those past OSHA ETS initiatives. Individual plaintiffs, employers, and the states of Mississippi, Louisiana, Texas, South Carolina, and Utah filed suit against the OSHA mandate. They asked that the mandate be stayed from going into effect pending the outcome of their suit, which seeks a permanent injunction. The Circuit considered the normal rules of jurisprudence concerning stays and injunctions and issued a stay, holding that the mandate was not “likely to succeed… for a multitude of reasons.” After the loss at the Fifth Circuit, and in light of similar challenges in other federal courts, the Biden administration has suspended the vaccination mandate. Now, in keeping with rules governing multi-circuit litigation, the Sixth Circuit Court of Appeals will take over the Fifth Circuit’s case, BST Holdings, LLC et al. v. OSHA, as well as all other cases nationwide challenging OSHA’s mandate. The Biden administration argued that its basic statutory authority together with its special emergency authority allowed it to issue an ETS because Covid had created a “grave danger” to the country by exposing workers to “toxic or physically harmful… substances or agents.
