Fifth Circuit's reaffirmed stay — against Biden Administration's COVID vaccine mandate — tears Democrats a new elimination orifice

© 2021 Peter Free

 

13 November 2021

 

 

Yay

 

The Court of Appeals for the Fifth Circuit, yesterday, issued a reaffirmation of its stay — pending further judicial review — against the Biden Administration's Occupational Safety and Health Administration-implemented COVID vaccine mandate.

 

See:

 

 

BST Holdings, L.L.C. et al. v. OSHA (Petition for Review of Occupational Safety and Health Administration Emergency Temporary Standard) (12 November 2021) — here in PDF form.

 

 

The Fifth Circuit's comparatively short document . . .

 

. . . lists the brief arguments, which any marginally competent Executive Branch appointee should have known would rein their power-hunger in.

 

The three Circuit judges involved — Jones, Duncan, and Engelhardt — explicated what should have been exceedingly obvious to anyone regularly involved in the application of administrative and constitutional law.

 

Of wider note, the Court sifted down to the crux of what bothers so many liberty-loving Americans about the President's hammer-handed injection mandate.

 

How the Biden Administration missed every one of the below (arguably defining) legal points reveals either the Administration's autocracy-loving nature — or its appalling stupidity — or the combined both.

 

 

The appellate judges' reasoning — follows in extracted form

 

Let's just hit the high points. Applicable page numbers (for the quotes) are enclosed in brackets.

 

To begin with, getting the Judiciary to stop an Executive Branch's something-or-other from being implemented is quite difficult.

 

When a court does (at least temporarily) bar an Executive action from taking effect, that Government order is usually so blatantly unconstitutional, or administratively out of bounds — and its harm (to the petitioners) so obvious — that the court metaphorically feels compelled to act.

 

With regard to the Biden Administration's vaccine mandate, here is what the three Fifth Circuit judges wrote in those regards:

 

 

Under the traditional stay standard, a court considers four factors:

 

 

“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

 

(2) whether the applicant will be irreparably injured absent a stay;

 

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

 

(4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

 

 

Each of these factors favors a stay here. [at page 5]

 

 

The Circuit judges reasoned that the vaccine mandate . . .

 

. . . includes too many people and too few — to meet basic legal logic's demands.

 

Too many, with regard to covering both solitary workers in open spaces and shoulder-to-shoulder people in confined spaces.

 

Too few, with regard to asking why there is no Mandate for employers with 99 or less workers. Presumably many of whom are working in conditions identical to those of the larger businesses:

 

 

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. [at page 8]

 

OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.”

 

[T]his kind of overbreadth plagues the Mandate generally. [at pages 10-11]

 

 

Furthermore, there are simple statutory concerns

 

The Court inquired as to whether COVID constitutes the kind of "grave danger" that OSHA's implementing statute says is required for it to act:

 

 

For starters, the Mandate itself concedes that the effects of COVID-19 may range from “mild” to “critical.”

 

It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here. [at pages 11-12]

 

 

Then, there are constitutional constraints

 

You know, those limits on Government action that come directly from the supposedly constraining nation-founding document. That Constitution which is so fondly ignored by one presidential administration after another. As well as by Congress and even the US Supreme Court. See here and here.

 

Not of a Constitution-ignoring frame of mind, the Fifth Circuit trio of judges wrote that:

 

 

A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.

 

The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power.

 

Indeed, the courts “always have rejected readings of the Commerce Clause . . . that would permit Congress to exercise a police power.” United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring).

 

In sum, the Mandate would far exceed current constitutional authority.

 

Second, concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.

 

As Judge Duncan points out, the major questions doctrine confirms that the Mandate exceeds the bounds of OSHA’s statutory authority.

 

Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (cleaned up).

 

Accordingly, the petitioners’ challenges to the Mandate show a great likelihood of success on the merits, and this fact weighs critically in favor of a stay. [at pages 16-18]

 

 

As to the distribution of potentially irreparable harm . . .

 

. . . (should the Government vaccine be allowed to go forward without judicial review), the three Fifth Circuit judges reasoned as follows:

 

 

It is clear that a denial of the petitioners’ proposed stay would do them irreparable harm.

 

For one, the Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).

 

For the individual petitioners, the loss of constitutional freedoms “for even minimal periods of time . . . unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

 

Likewise, the companies seeking a stay in this case will also be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the Mandate, the diversion of resources necessitated by the Mandate, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees.

 

The Mandate places an immediate and irreversible imprint on all covered employers in America, and “complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.”

 

See Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part and in the judgment)).

 

The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.

 

In contrast, a stay will do OSHA no harm whatsoever. Any interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate.

 

Moreover, any abstract “harm” a stay might cause the Agency pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies. [at pages 18-20]

 

 

Last, the public interest

 

The appellate Court concluded that the public's core interests go against the Biden Administration's rampaging agency (OSHA):

 

 

[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 officials. [at page 20]

 

 

The moral? — The Fifth Circuit's reasoning is what liberty-valuing Americans also, instinctively, think

 

The Circuit's reaffirmed temporary stay — against the Biden COVID vaccine mandate — points to the increasingly totalitarian nature of the Democratic Party.