Biden Doubles Down on Vaccine Mandate With Another Circuit Court

Message of the Day

If you don’t like the ruling, try another circuit court.

Please note Biden Administration Asks Appeals Court to Reinstate Vaccine Rules for Employers.

The Biden administration on Tuesday filed an emergency court motion that seeks the immediate reinstatement of its rules requiring many employers to ensure their workers are vaccinated or tested weekly for Covid-19.

The Justice Department filed the request with the Sixth U.S. Circuit Court of Appeals in Cincinnati, which last week was designated as the court that would decide legal challenges filed around the country to the vaccine-or-testing rules.

A federal judicial panel on multidistrict litigation last week consolidated all the cases in the Sixth Circuit. Before that order, another court—the Fifth Circuit in New Orleans—issued a preliminary stay that prevented OSHA from moving forward to implement the employer rules.

The Fifth Circuit said OSHA’s rules improperly asserted “virtually unlimited power to control individual conduct under the guise of a workplace regulation.” The decision wasn’t a final ruling, but the court concluded that employers and other legal challengers were likely to win. It put the rules on hold during continuing legal proceedings, citing compliance costs to employers and threats to “the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).”

The Fifth Circuit is one of the nation’s most conservative federal courts, and the Sixth Circuit’s rulings lean in a conservative direction as well. If the Cincinnati-based court denies the Justice Department request, the Biden administration would have the option to seek emergency intervention from the Supreme Court.

5th Court Ruling 

On November 15, I noted Appeals Court Blocks Biden’s Vaccine Mandate in a Blistering Rebuke

Key Judicial Points of the 5th Circuit

• On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms
• Rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.
• The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor.
• In light of this immense complexity, one might naturally ask the Agency—is this situation truly amenable to a one-size-fits-all Mandate?
• At the same time, the Mandate is also underinclusive. The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer. The underinclusive 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.
• If the deficiencies we’ve already covered aren’t enough, other miscellaneous considerations seal the Mandate’s fate. For one, “[t]he Agency cannot use its ETS powers as a stop-gap measure,” Asbestos Info., 727 F.2d at 422, but concedes that that is precisely what the Mandate is intended to do here.
• It lastly bears noting that the Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits, or at least counsel against adopting OSHA’s broad reading of § 655(c) as a matter of statutory interpretation.
• The Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.

Summation of Key Terms Used by the Court

• “Fatally flawed”
• “One-size-fits-all sledgehammer”
• The “one-size-fits-all Mandate” is simultaneously overinclusive and “underinclusive”
• “Immense complexity”
• “It regulates noneconomic inactivity that falls squarely within the States’ police power”
• “True purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”

Brick Wall of Common Sense

The last bullet point above says it all: The “True purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”

The Appeals Court ruling was unanimous, and rightfully so.

Biden Doubles Down

Today the Biden administration doubled down despite the blistering rebuke.

Moreover, the public is not in favor of this intrusion. It is sure to cost additional votes in the 2022 midterms.

What Does Covid-19 Breakthrough Data Suggest About Waning Immunity?

Hopefully, the 6th circuit court gives Biden another blistering rebuke.

Meanwhile, please consider What Does Covid-19 Breakthrough Data Suggest About Waning Immunity?

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