The US Court of Appeals for Fifth Circuit has stayed the OSHA’s newly-announced Emergency Temporary Standard, (ETS), mandate COVID-19 testing or vaccination combined with masking at private workplaces under the control of employers with more than 100 employees. This is the complete ruling:
Before The Courier It is The petitioners’ Emergencies Motion You can find more information here Stay Enforcement Of The Workplace Safety And Gesundheit Administration November 5, 2021 Emergency Temporary Standard(the “Mandate”) En cours expedited review
The petitions are a sign that there is a grave violation of statutory law Constitutional issues with the Mandate. The Mandate is therefore STAYED This court will continue to act.
It Goverment Please Respond To the petitioners’ Motion You can find out more about a Permanent injunction after 5:00 pm Monday, November 8 Petitioners must reply to the petitioners by Tuesday, November 5, at 5:00 pm 9.
So ordered
For the sake of transparency, all three panel judges (all conservative Republican nominees) were served with this order per curiam. However, the temporary suspension of the mandate will be lifted. According to the court, the stay of the mandate is temporary and may be lifted upon “expedited Judicial Review,” which can happen quickly given the order’s accelerated briefing.
The case was brought by several employers as well as GOP-controlled state governments. The Fifth Circuit was chosen by a group of employers and several GOP-controlled state governments because it offered a more conservative approach that would allow them to win. A unique statutory provision permits this case to directly be filed before a federal appellate court. This is in contrast to being first heard by the trial court as with most federal civil lawsuits.
I mentioned previously that I thought the vaccination mandate had significant legal weaknesses and may set a dangerous precedent. However, I do not know the reaction of the courts to legal arguments against it. The answer to this question is still not known with any certainty. The Fifth Circuit stated that, “The petitions suggest that there may be grave statutory violations. The fact that there are constitutional problems with the Mandate is at the very least an indication of the judges’ belief in the need to make a strong case against it. It is clear that they do not consider the case a win-win situation for the federal government.
Although the Fifth Circuit panel may rule against Biden’s administration, it won’t be the end to the legal struggle over this matter. It all depends on the scope of the ruling and what grounds it is made on. OSHA might respond to any narrow ruling by changing the mandate’s scope or altering it. The Supreme Court could reverse or limit a ruling by a lower court against OSHA.
The legal fight over OSHA ETS’ vaccination mandate is only the beginning. But, the agency may overcome this first setback. Even so, it is possible that the agency will overcome this setback. A panel of judges from the federal circuit courts may say that your policy defense is not “appropriate”.Grave violations of statutory provisions “Constitutional issues” is rarely a positive sign.
Previous posts have highlighted that the government’s other mandates for vaccines, such as those covering federal employees (e.g. I’ve previously commented on the administration’s vaccine mandate policy. However, I believe that the OSHA employer mandate represents executive overreach and could set dangerous precedents if it is upheld. It will be interesting to see if and in what manner the Fifth Circuit concurs with this assessment.