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:
TO THE HONORABLE BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT: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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