The Volokh Conspiracy

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Fifth Circuit Grants Stay Pending Review in OSHA Vaccine Mandate Case

The Circuit Court lottery will be held on Tuesday.


On Friday evening, the Fifth Circuit granted a stay pending review in the OSHA vaccine mandate case. The panel found that OSHA failed to satisfy the demanding standing for an emergency temporary standard (ETS). Specifically, the proposed rule is both overinclusive and underinclusive. Here is an excerpt:

On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—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, and which OSHA itself spent nearly two months responding to threat).

The circuit court lottery will be held on Tuesday. I am still not sure what happens if a permanent injunction is issued in the Texas case beforehand. In any event, the lottery should be broadcasted on Zoom, like the Powerball drawing! So much turns on which number is drawn. Transparency would be helpful.