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Appeals Court Halts Biden OSHA Employer Vaccine Mandate Pending Consideration of Permanent Injunction

Appeals Court Halts Biden OSHA Employer Vaccine Mandate Pending Consideration of Permanent Injunction

“IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.”

On November 6, 2021, reported on the temporary stay of the Biden employer vaccine mandate issued under the purported authority of the Occupational Safety and Health Administration (OSHA), 5th Circuit Appeals Ct Halts Biden Employer Vaccine Mandate “Pending Further Action By This Court:

The Biden administration has imposed a vaccine mandate on all companies with over 100 employees, originally due to start in December now pushed back to January.

The mandate was accomplished through an OSHA Emergency Temporary Standard, which arguably is beyond OSHA’s authority. Because the issue is an agency action, a group of plaintiffs invoked a federal appeals court rule that allows an application for a stay of agency action directly in the Court of Appeals.

You can read the Motion for a Stay and Motion for Expedited Consideration, filed on November 5, 2021, in the 5th Circuit Court of Appeals….

The Court just issued an emergency stay pending an expedited briefing schedule ….

That briefing concluded, and the 5th Circuit today issued its Order putting a longer-term hold on the mandate pending consideration of a permanent injunction.

The Opinion started by noting how rare the procedure used by OSHA was:

The Occupational Safety and Health Administration (OSHA) “reasonably determined” in June 2020 that an emergency temporary standard (ETS) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.” … This was not the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so…. In fact, in its fifty-year history, OSHA has issued just ten ETSs.1 Six were challenged in court; only one
survived.2 The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that “[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,” so “[t]hat power should be delicately exercised, and only in those emergency situations which require it.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129–30 (5th Cir. 1974).

This case concerns OSHA’s most recent ETS—the Agency’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask.3 An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.

Here’s the key portions of the Opinion:

We first consider whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.

We begin by stating the obvious. The Occupational Safety and HealthAct, 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 doctrine8—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….

On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today9—it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with 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 underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years,10 and which OSHA itself spent nearly two months responding to11—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.


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 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 official….

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”22 remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.23

In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.

Don’t be surprised if the Biden administration seeks a way around this, likely asking the full 5th Circuit to reconsider the decision, or going to the U.S. Supreme Court. Neither maneuver is likely to succeed. OSHA has no authority to do what Biden wants.


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And if Biden continues to tell everyone to ignore the injunction, then what?

    TargaGTS in reply to JHogan. | November 12, 2021 at 9:18 pm

    I am unaware of any instance in recent, modern history of a US president publicly instructing citizens to disregard any order of a federal court (or any court, for that matter). It’s really a ‘shocks the conscience’ kind of statement from Biden that has gone entirely without critical comment from the mainstream media.

    In fact, the only thing that comes close is the infamous alleged quote by Andrew Jackson of the Worcester v Georgia decision, ‘John Marshall has made his decision; now let him enforce it.’ But, there are no contemporary sources for that statement and it’s very possible it was fabricated decades later. Joe Biden’s press person, speaking for the president, said what she said on TV in front of God and everyone. Joe Biden, norm restorer.

      Subotai Bahadur in reply to TargaGTS. | November 12, 2021 at 10:07 pm

      Keep in mind that a “new normal” has to start somewhere.

      Subotai Bahadur

      gospace in reply to TargaGTS. | November 13, 2021 at 12:52 pm

      Courts ruled DACA was unconstitutional- and it was never halted. And when Trump ordered it halted- it was ruled unconstitutional for him to stop an unconstitutional executive order using a constitutional executive order because he hadn’t followed the proper administrative procedures.

      This will be the first time in my lifetime a court has ruled a Democrat president must follow the Constitution. And I’m willing to bet the MSM will cheer Biden on if he refuses to.

        Milhouse in reply to gospace. | November 14, 2021 at 9:23 am

        Courts ruled DACA was unconstitutional

        No, they didn’t.

        This will be the first time in my lifetime a court has ruled a Democrat president must follow the Constitution.

        Not by a very long shot. Not even if you’re only 15. 0bama got shot down several times.

    JustSayN2O in reply to JHogan. | November 12, 2021 at 9:45 pm

    ignoring the order of a Federal Court . . . hmmm seems violative of the Constitutional separation of powers

    paracelsus in reply to JHogan. | November 13, 2021 at 7:24 am

    @ JHogan
    we no longer have a United States of America which many of us have been saying since the fauxlection

    The_Mew_Cat in reply to JHogan. | November 15, 2021 at 6:43 am

    The Biden Administration can enforce the order directly. He does not heed the machinery of the courts. The Treasury Department can directly debit bank accounts through the ACH system to collect fines.

Ty Professor, is it my magical thinking (again) or is there a teensy ray of sunshine peeping through this Biden sht storm?

All it took to stop Trump was a single Hawaiian judge.
It’s going to take a PRC hypersonic missile to stop Joe.

My faith in courts standing up for the rule of law isn’t very much these days, call it a tax or pandemic to save humanity or whatever they want is the new law.

My assumption is a whole lot of 100+ employee companies are going to implement a vax & test mandate regardless of what happens to the OSHA mandate. In fact, I think that’s actually what Biden is trying to accomplish. He doesn’t need a Federal mandate if he has “voluntary” compliance, and I have little faith that the court that is stopping OSHA would do the same for a lawsuit against a private mandate.

    CommoChief in reply to randian. | November 12, 2021 at 10:41 pm

    Yep. It’s largely a con/bluff to convince people that the mandate is inevitable while granting a fig leaf to employers. The question becomes if employees have the high demand skills and the moxy to walk away and go to work for a company that values them or go freelance.

    Some people do and even if they are not in the top 5% but simply a productive, experienced and reliable employee who is a good teammate they have leverage. IMO, companies may want to back off and let this play out in CT before potentially losing not only key employees but those employees who get things done in other less measurable ways but when absent are always missed.

    Voyager in reply to randian. | November 12, 2021 at 11:29 pm

    Yes, that’s what I’m seeing too. The companies know the government will penalize them for not doing it, regardless of what theaw or the courts say, so they’re going to fall over themselves to enforce his whims.

    It’s disgusting, and I’d really like to know what the actual recourse is here.

    Milhouse in reply to randian. | November 14, 2021 at 9:27 am

    Of course it wouldn’t. There are no grounds for a lawsuit against a private mandate (with the minimum of exemptions required by law). This suit is brought on behalf of employers, not employees.

    paracelsus in reply to Sisu. | November 13, 2021 at 7:32 am

    You know “what the actual recourse is,” but nobody wants to discuss the several possible paths; certainly not in a public forum such as this.
    We look at the overresponse to the January 6 protestors and we cower at the possible Government (read Biden) retribution.

      @paracelsus, you make two points: “nobody wants to discuss the several possible paths; certainly not in a public forum such as this.” Does the first really preclude the second? And does the second not preclude the first? Asking for a friend. 😛

Sure thing, Sloppy Joe!
You pull this stunt, and the sabotage will be rampant.
Is that a threat? You bet your ass it is!

As the kids say.. I’m dying

Page 12

… the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here

Nailed it…

Don’t be surprised if the Biden administration seeks a way around this, likely asking the full 5th Circuit to reconsider the decision, or going to the U.S. Supreme Court. Neither maneuver is likely to succeed. OSHA has no authority to do what Biden wants.

Or they could just ignore it.

    From another blog, and especially after the the “Temporary Standard remains Stayed” in yesterday’s ruling, the Administration will likely hesitate given that this “stupidity” by pelosi and tribe (yes, it was they who the mouth piece Klain is speaking for) would before the SCOTUS open an avenue to attack / criticize Chevron. Certainly the demonrats do not want that !

Many employers aren’t relying on this mandate to force employees to get vaxxed and show proof. Are they protected from liability? If so, that should be addressed.

    TargaGTS in reply to james h. | November 12, 2021 at 9:57 pm

    Some are, for certain. When Trump signed the first COVID emergency bill, it contained a provision that indemnified some employers who qualified as ‘program plannes’ (I believe was the operative phrase). These were (usually) the health-care related employers who established their own vaccine distribution plans to vaccinate their own employees. They essentially now enjoy absolute immunity from liability claims.

    For other employers, it’s more…complicated. It really depends on what state the employer is in (as some states have indemnified employers) and how federal orders/regs will be interpreted by courts moving forward. IOW, we’ll see what the courts say as Congress hasn’t acted definitively, yet. I’m not sure if the two huge bills pending in Congress address this at all.

      diver64 in reply to TargaGTS. | November 13, 2021 at 4:48 am

      Indeed, but if employees just do not show up for work in large enough numbers to cripple a company then what? If that company is a publicly traded company I would think a few lawsuits by shareholders for Breach of Fiduciary Duty would put a stop to it. Hard to argue against that when workers are telling the company that if they do something they won’t show up and the company does it anyways.
      What if 10% of truckdrivers decide to retire due to this end run by Biden which is on the low end of estimates? How is the Biden Mob figuring any supply chain improvement with no-one to move the freight? How is Biden going to get around this giant emergency OSHA being put aside for tens of thousands of Postal Workers? It’s not much of an emergency if you exempt entire swaths of the country.

        TargaGTS in reply to diver64. | November 13, 2021 at 8:07 am

        To be clear, the only civil immunity that I’m writing about – and that has been addressed legislatively or through fedgov Department rules – is liability from tort claims from ill-effects (medical effects) of the vaccine itself. For instance, if you work at a hospital and have been forced to take the vaccine and now you’re crippled (or dead) from the vaccine, neither you nor your family have any course of action against the hospital because of the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 signed into law by Trump in March of 2020.

        Now, if a business fails because they had to enforce a mandate, either federal or state mandate, is another question altogether. IANAL (only a reasonably large small business owner), but because of sovereign immunity, both state and local governments enjoy robust immunity from that kind of claim. IOW, oppressive government regulations aren’t actionable if they damage your business even to the point of failure, unless you can demonstrate that regulation hurt you in some particularized kind of way.

        It shouldn’t surprise us that the government that makes the rules always writes built-in protections for itself.

The Biden Admin is not going to prevail on this as there is no statutory basis for their action. There’s absolutely nothing for the govt to hang their hat on to create even a tenuous connection to the statutory authority of OSHA.

    I don’t see how an emergency order can stand when its implementation is delayed until after the holidays for purely political reasons. There’s an emergency need for this mandate of there is not. Obviously, there is not.

    TX-rifraph in reply to CommoChief. | November 13, 2021 at 7:05 am

    Yes. They are desperate. Has not the law, regulations, and scientific protocol been ignored from the beginning (we can start with last November)? The law is a weapon to a totalitarian. This speed bump could grow into a barrier but the elites will continue to use fear to bully their agenda forward. Get ready for the next step if this OSHA tactic fails.

      CommoChief in reply to TX-rifraph. | November 13, 2021 at 11:23 am

      To be honest I don’t think they are desperate. I think that the Admin is caught up in trying to appease their base re the vax. By that I mean that, by and large, the d/prog are incredibly risk averse v the rest of us. Therefore the d/prog are more receptive to the idea of mandates. Reflect on how many times we have been lectured ‘if it only saves one life’ or ‘it’s for the children’.

      Their base is all in on the idea that Covid is a threat to the existence of humanity. These hypochondriac are demanding that the govt ‘do something’ and these mandates are the result. The reality is they are not lawful nor effective. The irony here is that if the Admin goes forward they are going to be required to lay out the scientific basis for several points:
      Is this an emergency? What is the efficacy of the vax in preventing transmission? What is the durability? Compare Vax efficacy and durability to that of natural immunity and explain why the vax mandate excluded natural immunity. Since the vaxed do spread what are the testing provisions for vaxed? Why not upgrade testing to ID employees who have a high viral load whether vax or not?

      The case for a vax mandate might have been stronger this spring before evidence rolled in from Israel, India, Britain among others regarding the efficacy of the vax at preventing transmission. Now those data sets are buttressed by US data where high % vax States now have high case rates and hospital data where a large portion, 40%+ in MN, of Covid hospitalization are fully vaxed.

      IMO, the Admin would be better off taking the L now instead of being trounced in CT and making the anti-mandate argument public to a sub population, the d/prog base. These are the same echo chamber folks who are only now realizing the facts in the KR trial and struggling to comprehend that what they thought was ‘true’ was clearly refuted at trial.

      The_Mew_Cat in reply to TX-rifraph. | November 15, 2021 at 6:49 am

      Yes, they are desperate. They know the virus will surely kill Dementia Joe no matter how many boosters he has had, given his age and condition. They know if it continues to spread, it will eventually get him, no matter how often his staff are tested. This is all about self preservation for Biden. After his vaccine mandate, he will try to impose a weekly testing mandate as well. He really has no other tools.

When you get your great policy ideas from Twitter, there are likely to be….problems.

Lucifer Morningstar | November 13, 2021 at 4:07 pm

Oh please, the Biden regime will simply do an end run around any state courts, go directly to the SCOTUS and Roberts, Kavanaugh, Barrett along with the other liberal democrats on the court, will give the Biden regime and OSHA the stamp of approval to go ahead and implement this ETS and that will be the end of it. Guranteed.

Let’s hope that SCOTUS affirms this order Whether or not the Fifth Circuit wound require an en banc hearing by all of its members is an open question

    The_Mew_Cat in reply to Steven Brizel. | November 15, 2021 at 7:07 am

    Let’s hope there are no membership changes on the Supreme Court anytime soon. SARS2 is evolving to be both more virulent and more contagious, A vaccinated 80 year old is as vulnerable as an unvaccinated 60 year old, and being overweight is extremely bad for survival. If Clarence Thomas dies next week, Biden gets a pick and the court is 5:4.