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Multiple Emergency Applications For Supreme Court To Stop Biden Employer Vaccine Mandate

Multiple Emergency Applications For Supreme Court To Stop Biden Employer Vaccine Mandate

OSHA Says Enforcement Starts January 10

On Friday, December 17, 2021, the 6th Circuit Court of Appeals, designated to handle multi-district litigation over the OSHA vaccine and testing mandate on large employers, dissolved a previous 5th Circuit stay of the mandate.

OSHA has announced that starting January 10, it will start enforcement:

The Occupational Health and Safety Administration said Saturday it will wait until Jan. 10 to begin issuing citations to companies that do not comply with its coronavirus vaccine mandate.

Driving the news: OSHA also said that it would not issue citations for its COVID-19 testing requirements before Feb. 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard,” the agency said.

Earlier today, at least two Emergency Petitions were filed with the Supreme Court. There may be more, but these are two that I was able to find (if readers find more, please post in the comments).

A coalition of dozens of states, companies, unions, and individuals filed an Emergency Application for An Administrative Stay and Stay of Administrative Action.

The application for an administrative stay was presented to Justice Kavanaugh, who has responsibility for the 6th Circuit, but he almost certainly will refer the request to the full court since there are multiple weeks until the new rule would take effect. Here is the intro to application:


Neither Congress nor the Executive Branch has been bashful about testing the limits of its authority. For that reason, a “lack of historical” precedent is often “the most telling indication” that Congress lacked the power to pass a law, or that an agency lacked the power to promulgate a regulation. Free Enter. Fund v. Pub. Co. Acct. Oversight Bd ., 561 U.S. 477, 505 (2010) quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd. Bd., 537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J., dissenting)); see also Ut il. Air Regul. Grp. v. EPA , 573 U.S. 302, 324 (2014).

This case involves a historically unprecedented administrative command. Relying on a decades old statute pertaining to workplace dangers the “Emergency Provision,” 2 9 U.S.C. §655(c) OSHA promulgated a rule regulating the private healthcare decisions of tens of millions of Americans. COVID 19 Vaccination and Testing; Emergency Temporary Standard , 86 Fed. Reg. 61402 (Nov. 5, 2021) 2021). This rule call it the Vaccine Manda te will require roughly 80 million workers to be- come vaccinated or face a weekly self financed testing requirement and a daily mask- ing requirement.” App. B 6 Sutton, C.J. J., dissenting from the denial of initial hearing en banc ). No Administration in his tory has issued a comparable mandate.

This case does not present the question whether vaccines or vaccine mandates are wise or desirable. Instead, it presents the narrow questions whether OSHA had authority to issue the Mandate, and whether it lawfully ex ercised whatever authority it had. After all, “our system does not permit agencies to act unlawfully,” even during a pandemic and “even in pursuit of desirable ends.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs. Servs., 141 S. Ct. 2485, 2490 (2021) per curiam ). Here, the Emergency Provision’s text confirms what the lack of historical precedent suggests: OSHA lacked the power to issue the Vaccine Mandate. Because the State petitioners will likely prevail on the merits, and because they have satisfied the remaining stay pending review factors, this Court should stay the Vaccine Mandate. See App.A 39 A 57 (Larsen, J., dissenting); App. B 6 B.32 Sutton, C.J .., dissenting from the denial of initial hearing en banc )); B 33 B 42 (Bush, J., dissenting from the denial of initial hearing en banc The Court should also enter an administrative stay immediately, allowing it time to review the filings in this emer gency posture.  Absent a stay, the Vaccine Mandate will take full effect on January 4, 2022.

In addition and in the alternative, the Court should treat this application as a petition for certiorari before judgment and grant immediate review of the Vaccine Mandate’s legality.

Separately, BST Holdings and dozens of other entities have filed their own Emergency Application which also focused on a limited question:

Did the Occupational Safety and Health Administration (“OSHA”) exceed its lawful authority by issuing an Emergency Temporary Standard that mandates vaccination policy for all workplaces with at least 100 employees?

In both cases, the applicants want to focus on OSHA’s (lack of) authority to issue such an order. The goverment, of course, will say something along the lines of what the 6th Circuit said, the old days are over:

The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs. Despite access to vaccines and better testing, however, the virus rages on, mutating into different variants, and posing new risks. Recognizing that the “old normal” is not going to return ….

Separately, there is a third case involving vaccine mandates, Biden v. Missouri, where the government seeks a stay of a district court order halting a vaccine mandate issued by the Centers for Medicare & Medicaid Services (CMS), noting there has been disagreement on the issue among various courts:

This Court should stay the injunctions pending appeal. As the Eleventh Circuit recognized, the vaccine requirement falls squarely within the plain text of the Secretary’s statutory authority and complies with all procedural requirements. Indeed, it is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients. The conflicting positions of the courts of appeals make it highly likely that this Court will grant review if the district court’s injunction is affirmed. And the exceptionally urgent need to reduce the risk of COVID-19 exposure for Medicare and Medicaid patients given the anticipated winter surge in infections tips the equities overwhelmingly in favor of a stay. Indeed, in the weeks since the Secretary issued the requirement, new COVID-19 cases have already increased by more than 60%, to nearly 120,000 per day. And the highly transmissible Omicron variant, which emerged after the issuance of the rule, threatens to drive up case rates and risks to Medicare and Medicaid patients even higher.

Justice Kavanaugh, to whom that application also was made, has required that responses be submitted by 4 p.m. on Thursday, December 30, 2021.

So, at minimum, there will be three cases before SCOTUS involving vaccine mandates imposed by the federal bureaucracy on businesses.

Based on what has happened recently in the Supreme Court, I think it will be a close call on whether five Justices will halt the employer mandate. The three liberals will go all-in for the government power, and Roberts likely also. That leaves 5 remaining, and there certainly could be a weak link in the group (probably Barrett or Kavanaugh).


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Kavanaugh? We are sunk…

Subotai Bahadur | December 18, 2021 at 8:36 pm

Keep in mind that it is not only Kavanaugh that is the problem. The courts will not act to restrict the Left on anything regardless of the law or the Constitution. Anyone to the right of Trotsky will find themselves lost in shadows of penumbras and argument over whether the Constitution really applies.

Subotai Bahadur

“Indeed, it is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients.”

And the vaccine doesn’t do that.
Isn’t anybody paying attention?

Ronald Klain

I remember when the GOP used to say that Trump’s judicial picks were alone enough to prove his leadership.

He won confirmation of 19 judges in 2017.

Tonight, the Senate confirmed the 38th judge nominated by @POTUS
in 2021.

    Milhouse in reply to 4fun. | December 18, 2021 at 10:13 pm

    I remember when the GOP used to say that Trump’s judicial picks were alone enough to prove his leadership.

    Um, no, the GOP never said that. Getting judges confirmed doesn’t show leadership, it just shows that your party has the votes. Any president with a senate majority can do it. Unless you pick the wrong people, so just don’t do that.

    What the GOP was touting was the excellent quality of the people Trump picked. Maybe it was right and maybe not, but that’s what it was saying. So the number of Biden nominees confirmed is irrelevant; the question is only how good they are. I’m guessing Klain doesn’t want to take up that argument.

      One big thing that Trump did was nominate judges who were largely under the age of 50, which means they’ll be able to serve for decades if they want. Quite a few of them clerked for Scalia or Thomas.

      The Obama Administration put a lot of 50+ judges on the bench. The Biden people (who are for the most part former Obama people) are making sure to copy the Trump playbook and nominate younger candidates.

        Milhouse in reply to p. | December 18, 2021 at 10:58 pm

        Yes. Unfortunately the other side is capable of learning.

        But it doesn’t demonstrate leadership. Just numbers.

    Well, maybe if the Democrats hadn’t forced the Republicans to spend quality time confirming Trump Administration personnel who in normal circumstances would have been confirmed as a routine matter, there would have been more judges confirmed in 2017. And 2018. And 2019. And 2020.

      Olinser in reply to p. | December 19, 2021 at 11:11 am

      And the RINO bitches responded by having Lindsey Grahamnesty sitting on the Judiciary voting every single one of Biden’s nominees fast tracked out of committee.

      I am so sick of the RINO bullshit.

Not a lawyer, but could the OSHA action be challenged for frivolity and lack of significance? With roughly 2 million illegals imported by the administration and distributed all over the country and another half million not even caught that have entered, almost none of which have been tested or vaccinated and many with Covid, the OSHA action is largely irrelevant as to its claimed purpose. Anyone?

    Milhouse in reply to jb4. | December 19, 2021 at 12:03 am

    Nope. Those people are (supposedly) not in the workplaces of these employers, so they’re not creating an unsafe work environment there. The unvaccinated employees are the ones supposedly doing that, so they’re the ones OSHA is targeting with this “temporary emergency regulation”.

    The only grounds for challenge are that the OSHA enabling act just doesn’t allow for measures like this. This isn’t anything like what Congress had in mind when it gave OSHA its emergency powers. And the history of OSHA’s use of those powers is that in the majority of cases where it was challenged, the challenge was upheld.

      As noted by Mr. Bowman, is there any evidence that vaccination reduces transmission, since we know lots of vaccinated people are catching it? If not, this is a frivolous order and safety in the workplace is only enhanced by reducing exposure to Covid outside the workplace, which then goes to my point about illegals (and presumably not in OSHA’s purview).

        Milhouse in reply to jb4. | December 19, 2021 at 2:59 am

        Until Chevron is overturned I doubt the courts could even inquire into whether vaccination actually reduces transmission.

        And in point of fact, as far as I know the evidence is that it does reduce it. That lots of vaccinated people are catching it does not change that. Nobody ever said it would reduce it by 100%. No vaccine is 100% effective. But as I said, I don’t think the court could even get into that.

          Think38 in reply to Milhouse. | December 20, 2021 at 10:32 am

          Chevron gives a lot of latitude to decision making of the regulatory agency. That latitude is not unlimited, and believe is more limited here where the agency is using emergency rule making procedures, not the standard procedure that gets Chevron deference. Thus, the rule is vulnerable to attacks such as over inclusion or under inclusion.

        TargaGTS in reply to jb4. | December 19, 2021 at 8:15 am

        Not really. There was a significant study of transmission rates of vaxed vs unvaxed published in the Lancet several months ago. While the study showed that the vaccine suppressed transmission, that suppression was very, very modest. I can’t remember the exact numbers, but I believe it was something like: 27% rate of transmission in vaxed households vs 32% transmission rate in unvaxed households. That’s hardly a statistically significant difference.

        Joe-dallas in reply to jb4. | December 19, 2021 at 12:13 pm

        A second point on the frivoulness of the mandate:

        Pandemics rarely have a 4th wave that is anything more than mild (relatively), including the 1918 flu. The 3 waves of covid and the 3 waves of the 1918 spanish flu are all remarkably similar.
        The point being is that the 3rd wave will likely be over by late january or early feburary. and the 4th wave starting in late summer of 2022 will be relatively minor. So basically, the mandate will effectively be only a minor difference.

    TargaGTS in reply to jb4. | December 19, 2021 at 8:23 am

    Also not a lawyer, but that’s what I was hoping for before the Supremes decided to not hear the recent NY challenge. Not only is the the porous border, but the great majority of the science (peer-reviewed scholarly research) clearly indicates that the vaccines do very little to suppress the spread of the virus and really aren’t very effective at preventing infection. At best, they provide prophylactic therapeutic treatment for those who become infected.

    The reality of the woeful efficacy of the vaccine in preventing infection and spread undercuts the raison dêtre of the vaccine from a public health standpoint. You would think, logically, this should be something the Courts should heavily weigh in evaluating the mandates, right? Apparently not.

    If the government can make you take a vaccine that doesn’t reduce transmission or infection, much less stop it (like the Polio and Smallpox vaccines do), then there’s nothing the government can’t make you do.

It’s pretty much all theater at this point. SCOTUS passing on striking down the NY mandate is a sure sign that this challenge to OSHA will be rejected.

I dunno. I think that the Fifth Circuit’s opinion was so clear and so devastating that it will be hard to overturn it.

    freespeechfanatic in reply to Oregon Mike. | December 19, 2021 at 8:51 am

    Just wait. Kavanaugh and Barrett will find a way.

    Are you not paying attention?

    Sixth Circuit JUST OVERTURNED IT. The mandate is already back on unless coward Kavanaugh and Barrett get of their asses and rule.

    One way or another SCOTUS has TO RULE. I am so sick of this ‘sit back and pray maybe we won’t actually have to do anything’ attitude by Kavanaugh and Barrett.

    Hate to rain on the parade, but the Sixth Circuit didn’t find it so devastating. Here, it is the Sixth Circuit’s conclusion that is under review by SCOUTUS. Would of course vastly prefer they were reading the better reasoned Fifth’s conclusion.

“Unlimited power in the hands of limited people always leads to cruelty. ”

Aleksandr Solzhenitsyn
The Gulag Archipelago

Wasn’t there a ruling last November declaring that OSHA lacked authority on this issue? Or is this the same case finally reaching SCOTUS?

    5th Circuit found OSHA over-stepped it’s authority. The 6th Circuit has now found that it didn’t, setting aside the injunction of the 5th Circuit. Since there are competing Circuit Court opinions, the Supremes will certainly hear the case, likely (hopefully) in an expedited manner.

      freespeechfanatic in reply to TargaGTS. | December 19, 2021 at 8:53 am

      This Supreme Court will never again vote to limit the prerogatives and power of the government on any matter of such prominence. They, like every corporation and every Republican politician aside from a small handful, live in fear,

      Thank you. I listened to a long discussion about the 5th Circuit on Red-Eye Radio in November and for some reason thought that was the end of it. I can’t imagine that SCOTUS will find OSHA has the authority to do this. But then again… they are the Constitution whisperers who can channel the Founding Fathers to find all kinds of interpretations we mere mortals can’t perceive. We are back in the Dark Ages of dungeons, dragons, wizards and super-heroes in robes.

      Milhouse in reply to TargaGTS. | December 19, 2021 at 1:41 pm

      5th Circuit found OSHA over-stepped it’s authority

      No, it didn’t.

      The 6th Circuit has now found that it didn’t,

      No, it hasn’t. Nobody has yet found anything about this. The case will be heard and considered by the 6th circuit in due course. In the meantime all we are dealing with is injunctions. No findings. It’s all about what the status quo should be while the case is being decided.

From a rationality perspective the COVID OSHA rule is silly in that we spend less than a third of our time at work and yet are potentially exposed everywhere.

From a logical perspective the claim that we need everyone vaccinated because the vaccine is so great at protecting people despite the data showing vaccinated people being just as contagious and those who are not and how now the threat if catching COVID only from the unvaccinated is sheer lunacy.

From a consistency perspective people are demanding the “my body, my choice” for abortion but you have no choice for vaccines which shows the capricious nature of their argument.

From an ethical perspective the idea of forcing the public to inject an experimental “vaccine” into their bodies when we still have no full understanding of the benefits or dangers is unconscionable.

From a medical perspective, it makes no sense to demand vaccines for something that largely attacks a specific subgroup of the population while leaving essentially the rest at little risk.

From a legal perspective the argument appears to be more emotional and political and anything else. Either toe the Leftist line or be crushed by the media.

thalesofmiletus | December 19, 2021 at 10:34 am

If 100 employees, will become 1 employee. It’s an arbitrary number. The point is to legally break your millstone for non-compliance.

Many laws are being broken. If a company requires an employee to do something illegal, such as take an illegal vaccine, and the employee is crippled for the rest of his life, it would seem to me that the employer is on the hook both for both civil and criminal damages.

The experimental vaccines had to be pulled when Comirnaty was approved. It is illegal that the experimental vaccines are available. So the court demands that the business break the law to harm an employee with an experimental vaccine that by law is not supposed to be available.

That is the case, because we know from results of medical experiments that the vaccines cause clotting that can be measured in 60% of the people. The absolute benefit from the vaccine is less than 1% for several months. The clotting damage is forever.

It is getting increasingly hard for the Supremes to do nothing at all. It takes 4 votes to hear the case on its merits, 5 to grant an injunction. I’ll bet there are 4 votes to hear it, but not 5 for an injunction. Supreme Court Justices don’t want to get blame from the President, Democrats, and the Media for a disastrous pandemic wave, if one occurs – and one thing the Biden crew and the media are good at is assigning blame. That is why they probably won’t issue an injunction, and will hear the cases on a leisurely schedule to issue a ruling in June or July.

I am concerned for my employees who will be terminated. Three of them had the virus and do not want the shot. The fourth is a young women who works out daily and doesn’t put unknown substances in her body and wants to have children.