Vaccine mandates

The Biden Administration Is Asking an Appeals Court to Lift the Order Blocking OSHA's Vaccine Mandate

The government argues that the 5th Circuit erred in concluding that the rule "grossly exceeds OSHA's statutory authority."


The Biden administration today asked a federal appeals court to dissolve the stay blocking implementation of its vaccine mandate for private employers, warning that any delay in enforcing the rule "would likely cost many lives a day." In an emergency motion filed with the U.S. Court of Appeals for the 6th Circuit, the government's lawyers say there is no merit to the statutory or constitutional arguments against the mandate, which demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and submit to weekly testing.

The Occupational Safety and Health Administration (OSHA) published that "emergency temporary standard" (ETS) on November 5. The U.S. Court of Appeals for the 5th Circuit temporarily blocked it the following day, saying it raised "grave statutory and constitutional issues." The 5th Circuit extended its stay on November 12, saying the ETS is "fatally flawed" because it "grossly exceeds OSHA's statutory authority." Last week, various challenges to the mandate, including the 5th Circuit cases, were consolidated and assigned by lottery to the 6th Circuit, which the government is now asking to override the other court's order.

The ETS option, which OSHA rarely uses, allows the agency to circumvent the usual rule making process, which typically takes years, by imposing regulations that take effect immediately upon publication. But to avoid the public notice, comment, and hearing requirements that ordinarily apply to OSHA rules, the agency has to identify a "grave danger" to employees "from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." It also has to show the emergency standard is "necessary to protect employees from such danger."

The 5th Circuit said OSHA had failed to satisfy those statutory requirements. It added that the mandate "raises serious constitutional concerns." The government says the appeals court was wrong on both counts.

The administration's motion recapitulates the dispute about whether the COVID-19 virus counts as a "physically harmful agent" or a "new hazard." The government says it is both, citing favorable dictionary definitions, prior OSHA policy, and the relatively recent discovery of the coronavirus, which "was unknown in the United States until early 2020."

The 5th Circuit, by contrast, suggested that was not recent enough to justify an emergency standard. It wondered why OSHA waited nearly two years before declaring a workplace emergency. The government says changing circumstances, including business re-openings, the development of vaccines, and the proliferation of the especially contagious delta strain, explain the delay.

The 5th Circuit suggested that OSHA's mission is limited to hazards that are either unique to workplaces or especially acute there, as opposed to dangers that are "widely present in society." It said COVID-19, a contagious disease that can be transmitted in any place where people gather, falls into the latter category.

The government notes that "OSHA has required precautions for bloodborne pathogens, which can be contracted outside the workplace, and has long imposed workplace sanitation and fire rules, even though such concerns are not workplace-specific." It says "workplace dangers have long been understood to include the dangers of contracting communicable diseases as a result of being in close proximity to other employees." And it argues that "COVID-19 is a particularly acute workplace hazard," because "the nature of workplaces is that employees come together in one place for extended periods and interact, thus risking workplace transmission of a highly contagious virus."

The 5th Circuit faulted OSHA for issuing a "staggeringly broad" rule that failed to adequately consider variations in risk between industries, workplaces, and employees. The government says such tailoring is neither practical nor legally required.

The appeals court said OSHA's 100-employee cutoff made the ETS "underinclusive," which suggested the agency was not actually motivated by a desire to promote workplace safety, as opposed to pursuing President Joe Biden's general goal of boosting the nationwide vaccination rate. The government says OSHA is "proceeding in a stepwise fashion" by applying the ETS to "companies that OSHA is confident will have sufficient administrative systems in place to comply quickly." It says the agency may ultimately decide to include smaller businesses.

The 5th Circuit said OSHA's mandate raises potential problems under the nondelegation doctrine, which is supposed to uphold the separation of powers by constraining lawmaking by executive agencies. The government notes that the nondelegation doctrine has almost never been used to overturn a congressional grant of power. All the doctrine requires is that such grants include an "intelligible principle" to guide agency action, a standard the government thinks is easily met by the statutory criteria for an ETS.

The 5th Circuit said OSHA's rule "likely exceeds the federal government's authority under the Commerce Clause, because it regulates noneconomic inactivity [i.e., the individual decision to forgo vaccination] that falls squarely within the States' police power." The government says that's the wrong way to look at the mandate.

"Congress has long regulated companies engaged in interstate commerce in a variety of ways," the motion notes, "and the Supreme Court has upheld such regulations of employment conditions as within Congress's commerce power." The government says the ETS "regulates employers who have affirmatively chosen to participate in interstate commerce" and "establishes conditions for employees' safe participation in employment—an economic activity." Like "many federal laws that regulate business conduct," it says, the standard "prescribes rules concerning how to engage in that commercial activity, and those rules sometimes require taking actions."

The 5th Circuit said OSHA shall "take no steps to implement or enforce the Mandate," which was scheduled to take full effect on January 4, "until further court order." Because "the harms to the government and the public…of continuing the stay would be enormous," the administration argues, the 6th Circuit should dissolve it entirely. Failing that, the government says, the 6th Circuit should limit the stay to the parts of the ETS dealing with vaccination, thereby allowing the testing and masking requirements to take effect.

NEXT: Inflation Is at a 30-Year High. Biden's Big Economy Speech Barely Mentioned It.

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  1. Fuck Joe Biden

    1. Fuck Joe Biden
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      1. Fucking Brandon

        1. Fuck his idiot followers too.

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    2. Fuck Joe Biden and his puppet masters.

    3. Fuck Joe Biden

    4. fuck me.

      1. Careful, you’re going to draw Tony’s attention with that kind of turn in talk. Or Buttplug’s, if he gets the idea you’re a minor.

  2. I see rumors of a mandate for interstate truckers as well.

    1. Rumors are shit. Maybe the plan is truckers from Mexico and Canada?

      1. If at this point you aren’t thinking the worst, you’re an idiot.

    2. Mexican truckers are very cost efficient space utilizers.

    3. That sounds like an excellent way to make the supply chain problems a hundred times worse.

      1. If only they'd join the union, there wouldn't be any of these problems... ya follow?

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  3. Anyone else see the irony of the government begging the lifting of the stay "warning that any delay in enforcing the rule 'would likely cost many lives a day.'"

    The enforcement of the ETS was not to begin until after the holidays. SO apparently letting people get infected and die before January is acceptable? Does anyone in this administration read what they write?

    Babylon Bee and The Onion couldn't make this sh!t up.

    1. Australia, Auschwitz Austria, Canada, Germany and Denmark all seem in a tizzy to force everyone before January. It's almost like it's coordinated.

      The Austrian government just made it illegal to be unvaccinated, and Australia put its first positive citizens and their contacts into the camps today.

      1. I was just perusing the World Freedom Index 2021 edition:

        New Zealand 8.88
        Switzerland 8.82
        Hong Kong 8.81
        Canada 8.65
        Australia 8.62
        Denmark 8.56
        Luxembourg 8.56
        Finland 8.53
        Germany 8.53
        Ireland 8.52

        That Hong Kong is in the top ten in 2021 is a joke. Same with New Zealand, Australia, Canada.

        I got no problem with us being at 12, because we could do a lot better, but certainly those countries don't belong on top of us.

        1. Methinks that this index is bullshit.

          Freedom’s foundation is 1A and 2A. I don’t believe any of those nations have either.

          1. Keep in mind that 1A & 2A are not really effective here.
            Try to take a pistol into Facebook headquarters.

            1. I'd rather bring an EMP.

          2. Kinda like any subjective (and self-fulfilling) rating system. Do those douche bags also rate colleges?

        2. How the fuck is New Zealand first? Seriously, how the fuck?

          Seems like "Experts wanting to show how little expertise they have" is not a phenomenon set to end soon.

          1. Or they redefined "freedom", like they did with most words.

        3. If you want freedom, exterminate marxists.

  4. They've had almost 2 years. Why is it an emergency now? Just follow the normal rule-making process, with public comment.

    1. Just two more weeks.

      1. to flatten the resolve

        1. Resistance! (TM) is now immoral. The NYT and ACLU told me.

          1. Dissidents will be reported to the complying government sponsors by the U.N. Human Rights Council.

    2. Why is it an emergency now?

      Thirty days, an indeterminate amount of time until a hearing, sixty days after that, possibly going through the process more than once, say, 4 times... suddenly your question becomes "Why is it an emergency that they get it implemented before November of 2022?"

  5. With the new vaccine mandates there’s so much stress in the world. You know what I do when I feel stress? I look for my book of Donald J. Trump quotes. Here’s one that makes me feel better.

    Our resistance will be long and painful, but whatever the sacrifices, however long the struggle, we shall fight to the end

    -Donald Trump

    1. ‘Yawn’

      1. “Advance towards socialism cannot but cause the exploiting elements to resist the advance, and the resistance of the exploiters cannot but lead to the inevitable sharpening of the class struggle.”

        - sarcasmic

        1. That sounds like DONALD TRUMP, who is my poobah, but it isn’t quite there yet. Maybe you need to pull your head out of all the liberal hate.

          1. It was actually Stalin I'm afraid, but sarcasmic endorsed and Buttplug advanced.

            1. Hmmm… I’m a Donald Trump fan so I dedicated an art project to him. I didn’t dedicate an art project to Josef Stalin, but maybe I should since you guys talk about him so much. He lived like 300 years ago and in Russia, right? It’s very important for me, who lives in the United States to learn about some guy that’s been dead for 70 years so n Russia. You know what Donald Trump would say about Josef Stalin? Probably something like this…

              Remember that the storm is a good opportunity for the pine and the cypress to show their strength and their stability.

              -Donald Trump

              1. When encountering TDS-addled assholes, I type:
                Fuck off and die.

              2. You’re really bad at this.

    2. When encountering TDS-addled assholes, I type:
      Fuck off and die.

    3. In about 3 more weeks, your handle will be about as relevant as one with "Sarah Palin" in it.

    4. That doesn't sound like Donald Trump. This is how he would have said it:

      "Our ... and look at all these lovely, lovely people, the best people, right here ... our resistance will be long ... just you wait and see, we're going to have the best, we're going to make it the beautiful ever ... our resistance ... and yes, it will be long and painful, but that's America ... we have the absolute best here ... (goes into long side-tangent, but never completes the thought, crowd goes wild).

      1. Not bad. Now do Biden.

  6. If it gets to the Supreme Court they'll let it stand as it will expire soon any way. Biden that is.

  7. The Hill with Reason's own Sarah Michelle Gellar Robby Soave is starting to not pull punches on the covid bullshit.

    Summary: Countries that were hailed for their forward thinking, progressive response to COVID are now in the COVID shitter and are locking everything down. Because science and zero covid are a thing.

    1. He didn't want to sound like a squish after Kim Iversen sounded so forceful.

      1. No adult that goes by "Robby" can avoid sounding like a squish.

  8. They came with their Doctors and their lockdowns. Torched our economies, suffocated our lungs with masks, destroyed the minds of our children, killed and maimed us for life with poison filled needles…

    And now they want us to be thankful to the WHO for being saved…

    from a cold.

    Once the psychopaths responsible for this are swinging from lampposts, we must never forget this tyranny, and Never allow it occur again.

    Always remember (click next link):

    1. I don't know about lampposts, but I do think we need to run the Davos crew and accessory politicians through some sort of post-Covid Nuremberg trials.

      1. You misspelled “woodchippers.”

  9. Correction; The Biden Administrating is 'asking' to be a ONE-Totalitarian Authority WITHOUT other branches of government interfering.

    Heck, they already ...
    1) Thwarted the Constitution entirely
    2) Nazified the press enough to dictate it
    3) E.O. most legitimacy of Congress
    Now controlling the courts (The FDR/Nazism success plan) would allow their Nazi-Regime to be a complete take-over of the USA.

    1. They have to move relatively quick because the clock is against them.

      1. I smell a 2022 emergency suspension of federal elections. But totes different from panicky rumors about a 2020 suspension.

        1. Some of the local elections here have been postponed for a year, supposedly. The reason that somehow "covid" is responsible, does not jive. I wonder if this is "shock testing" on the local level.

  10. The 5th Circuit said OSHA shall "take no steps to implement or enforce the Mandate" and should have added "Let's Go Brandon". Joe Biden is a wannabe dictator and unfortunately hold the highest office in the country.

    We have gone from a terrible president to one that is even worse. It difficult to speak favorably about a president I don't like, but we would have been better off even if Trump was reelected. While Trump encroached upon our individual freedoms, they were baby steps compared to the deleterious leaps that Biden is taking.

    "Let's Go Brandon"

  11. Man, wouldn't even be necessary if there weren't so many idiots in this country.

    1. "This country would be great without all of those damned kulaks!

      And Jews, too!"


    2. Shitfordinner could help by leaving; measurable improvement in the IQ level.
      FOaD, asshole.

  12. [W]arning that any delay in enforcing the rule "would likely cost many lives a day."

    By the same nanny logic mandate, the Biden administration announced emergency bans on driving, guns, sports, and going outside, plus closures of all fast-food places and new restrictions on grocery sales.

  13. Interesting that they're circuit shopping. Case too weak for the whole 5th circuit?

    1. Thought the same; while the 5th is clearly more conservative in it's decisions, the 6th is really more of a toss up circuit; you'd think if they really wanted this overturned they'd have gone with the 1st or 9th circuit.

      1. Yup. Maybe they'll just try every circuit till they get a win. Might know something by 2025. Or just get a ruling from SCOTUS. Nah.

    2. That, actually, is standard procedure. When something gets filed about in multiple circuits, they assign the circuit by lottery. Not a euphemism.

      It would have been hilarious if it had landed on the 5th Circuit, though.

  14. Oh look, another chance for our tyrannical government to trot out Wickard v. Filburn...

  15. Unsurprisingly, the author counters each government argument with the right wing court's counter. In his previous column he presented the case of the states thoroughly, approvingly, and without any counter points of any kind. This is not reporting, it's advocacy.

    There is a serious principle involved which the courts should ruke on, but it is not the constitutional right of the government to act in the interest of public health. The court resolved that in 1905 in favor of the government and we have all been living under that without controversy except from fruit and nuts anti-vaxxers in California. The principle in question is which government - 1905 was about a state law - and whether OSHA, which has already been granted regulatory powers over all US citizens, can uniquely enforce a federal mandate.

    In the interests of public health and reason, let's hope the courts eventually rule for the feds.

    1. "The court resolved that in 1905 in favor of the government and we have all been living under that without controversy except from fruit and nuts anti-vaxxers in California."

      A small fine and barring from engaging in life are different things.

      "In the interests of public health and reason, let's hope the courts eventually rule for the feds."

      Because the Feds have done a bang up job thus far...

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