Fifth Circuit Grants Stay Pending Review in OSHA Vaccine Mandate Case

The Circuit Court lottery will be held on Tuesday.

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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.

NEXT: How Many People Did NIH Director Francis Collins Kill?

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  1. How could there possibly be a permanent injunction by Tuesday?

    1. On the first go-around last weekend, the initial stay order suggested that the U.S. would need immediately to respond to private petitioners' request for a permanent injunction. Entering a permanent injunction this early in the case would have been procedurally improper, and the parties' briefing this past week was all about the stay; and last night's order confirms that the stay will remain in effect "pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction." So the answer to the question, "How could there be a permanent injunction by Tuesday" is, one of the Circuit's orders suggested that might be a possibility, but the second order established that it wouldn't happen.

  2. "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)."

    I can apply this to anything. Regardless of the line any agency draws I can make this exact argument and thereby strike down any regulation I want. It's so stupid.

    What's the alternative?

    Like wouldn't a vague statement that this may or may not apply to you using vague terms like "significant risk" and if your workspace is deemed to be a "potential danger" ... is that not an obvious due process violation? Isnt certainty a regulation does of doesn't apply better, constitutionally, and at the margin, than uncertainty, even if it is more "inclusive?" Hm?

    Like one should be able to say, yes, there is a line, we know 100 is close to that line, here is the proof, but no, we won't take this on a case by case basis because, well, that is not workable. And places a state of uncertainty for everyone.

    1. The lines OSHA drew are arbitrary, not rational. They don't relate at all to exposure or transmission risks. Your argument assumes they do, but are just suboptimal in some way that the court doesn't like, which is not true.

    2. "I can apply this to anything. Regardless of the line any agency draws I can make this exact argument and thereby strike down any regulation I want. It's so stupid. "

      And yet, both over-inclusiveness and under-inclusiveness have long been bedrock tests of constitutionality and legality in our system. So, you'd have to go a bit deeper if you want to criticize the particular application of those standards here...

      1. Both sides use this to get laws thrown out. Is it only a high value when it is a law we hate, but a low value with a law we like?

      2. "Bedrock"

        As far as I can tell, its first application in this strict form was daca 2 years ago ... which is a weird definition of bedrock.

        1. ? It shows up in discussions of narrow tailoring all the time. It's dang near as old as strict scrutiny.

  3. 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 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—is unavailing as well. And its promulgation grossly exceeds OSHA's statutory authority.

    Perhaps one should beware mocking non-instant responses to emergencies, when you yourself rush out your opinion before you have time to proof read it. Even as the burglar-rapist is climbing through the window, you still need to take the time to aim.

    1. And perhaps one should read the linked ruling before assuming that an error in a quote from it is present in the original.

    2. Blackman -- try that cut-and-paste again. Even a goofball can do it!

    3. "Even as the burglar-rapist is climbing through the window, you still need to take the time to aim."

      Sure, but it comes down to whether the amount of time taken is reasonable in light of the level of emergency being asserted. For example, the fact that the mandate got delayed to January to accommodate the holidays is one (though by no means the only...) factor leaning towards this not exactly being a "take the time to aim" situation...

      1. Sometimes you need to take a lot of time to aim, boresight your gun, re-aim, check the lighting conditions, check the wind, check that no one left a window open to create the wind, check that door draft dodgers are still in place, check the wind again, check the humidity, check the batteries for the illuminated reticle, re-check your aim, oh wait, is it Christmas yet, don't get distracted by the kitten, check the aim again.

        Don't rush these things!

  4. The ruling is an embarrassing bit of partisan nit-picking, light on legal analysis. There might be the core of a legal argument against the mandate, here, but the Fifth Circuit once again demonstrates its disinterest in doing anything other than political grandstanding, gambling once again that Alito won't stop them, and it'll be months before the Court could possibly intervene.

    Not surprisingly, Josh quotes the least relevant, from a legal perspective, part of the analysis. I can find no cite for the conflation of an ETS's needing to be "necessary" with the tailoring analysis the court engages in, in bad faith. The court repeatedly cites statements by Biden and OSHA, in other contexts not before the court, without seeming to understand there are legal principles that govern their relevance. The court substitutes its own judgment for the government's, in evaluating whether the virus is a "hazard," manufactures out of whole cloth an impossibly high burden that the government must meet to justify an ETS, and can't seem to decide the precise reason why COVID is no longer a "new hazard" meriting an emergency rulemaking.

    1. Precedence .... Judge Hoho Hawaii. Somebody should have taken precedence more seriously.

  5. Would a stay issued by the 5th circuit in advance of the lottery really be a bad thing? I think not. Why? At the very least, it would allow additional time for the legal issues to be developed. A big part of the problem I see is not all legal issues getting surfaced at the lower district court level. That hurts us in the long run.

    A federal vaccine mandate is a very significant change, from a federalism perspective. The basis being used by OSHA is novel. I don't think it is wrong to put the mandate on pause for a short time and really develop/debate/discuss the legal and constitutional issues, before moving forward. This federal vaccine mandate will easily affect north of 180MM people overnight. A change that momentous is not something you want to push through without a thorough and lengthy process.

    I hope a stay is issued by the 5th circuit. We need a 'time out'. Further, I would like to see the vaccine mandate placed on federal employees (and contractors) stayed as well. I don't think people quite appreciate the negative effect the federal employee/contractor vaccine mandate is going to have. More people will leave than you think.

    1. C_XY,
      You make a quite reasonable point. Even for someone who advocates vaccination I find the OSHA mandate and a large executive overreach.

    2. "I don't think people quite appreciate the negative effect the federal employee/contractor vaccine mandate is going to have. More people will leave than you think."

      Good. Those are the employees modern America can readily do without.

      (Now listen to what a Sugar Miami Little Steven Van Zandt arrangement can do. Carolyn Franklin, Aretha's sister and a dancing waitress in The Blues Brothers, wrote this one.)

      1. Right. No idea how a non-academic workplace works, do you?

        The people I talk to in high tech workplaces are finding it's the employees who do the actual high tech work who are saying "No!" The HR departments, completely unnecessary to production, are quick to comply.

        For the airlines- it's the pilots saying "No!" In the transportation industry- truck drivers and train engineers. Not like any of them are needed to keep those industries going, right? And they're so easily replaceable, no skills needed.

        Wouldn't surprise me if the vaccine holdouts in LA include the crane operators.

        1. I doubt disaffected, ignorant, contrarian, antisocial employees are the better employees.

          1. Yep. You'd rather people die because emergency services are understaffed due to vaccine mandates. You're a really good person. https://www.msn.com/en-us/news/us/seattle-13-yr-old-watches-father-die-as-police-funding-cuts-delay-emergency-response/ar-AAQFFYo

            1. Emergency services aren't understaffed due to vaccine mandates. What you mean — though you still have your facts wrong — is that despicable people who quit their jobs rather than get vaccinated created understaffing.

              But that isn't even right. The story — sourced to a talk radio host rather than an actual news source — says that it was police incompetence (but I repeat myself), not staffing, that was the problem. Emergency services arrived on time. But idiot cops who can't keep their information up to date told them that they couldn't go in because they had flagged the address as dangerous based on old information. So they waited outside instead of trying to help the person.

  6. Are there, in fact, other challenges in other circuits? What circuits? What are the challenges?

    More facts less speculation.

  7. Each of these judges is undoubtedly vaccinated, but the republican party line is against the mandate so anyone without a law degree could've predicted how the 5th Circuit, and these judges in particular, would come out on this. I believe it was Clarence Thomas who said something along the lines of "A judge who likes all of his decisions isn't a good judge." Can anybody think of an instance in which Edith Jones voted against her *political* beliefs?

    But the commerce clause "analysis," particularly in Duncan's concurrence, is wild. Just ignores everything that's happened since Hammer v. Dagenhart; it's that case revamped for the 21st century.

  8. Is Prof. Bernstein going to ask how many people this panel of Fifth Circuit clingers has killed?

  9. An important question is how effective the mandate will be - assuming it actually gets implemented as planned without any judicial restraints.

    Based on prior history of pandemics (1918 spanish flu, 1873 flu, etc) , covid19 will likely be over after the 2021/2022 winter wave.

    the current wave in the northern states, is similar to the winter wave of 2020/2021 even though 70+% of the population are vaxed. Since, the number of cases is at similar levels to last years winter wave, we now know that the current surge is no longer a pandemic of the unvaxed. MN for example approx 50% of the cases are now of the vaxed. Also note that only 20% of the cases in July / aug were vaxed.

    As florida shows with its lax mitigation protocols, vs the northern blue states much stricter protocols, there is little difference in the infection rates and little difference in the death rates by age group. In virtually every region/state, etc, the death rate for age 65+ ranges between 1100-1300 per 100k

    As most people now recognize, natural immunity is much stronger than vaccination.

    1. MN for example approx 50% of the cases are now of the vaxed.

      This is, in fact, incorrect. What the data show is an increase in cases for the vaxxed, but an even more rapid increase in cases for the unvaxxed.

      As florida shows with its lax mitigation protocols, vs the northern blue states much stricter protocols, there is little difference in the infection rates and little difference in the death rates by age group.

      Again, this is not what the data show, but we also need to be more precise about what Florida did, what Florida didn't do, and how we can extrapolate from their experience.

      First, Florida (along with much of the rest of the south) fully embraced the Delta surge. They're getting over their Delta surges now, but the spikes in cases, hospitalizations, and deaths they saw have not been replicated in parts of the country with high levels of vaccination. Those spots saw Delta surges, too, but there's a very clear pattern in high-vaxxed spots that it just didn't get as much traction there.

      Second, the Delta surge has helped to illustrate that the country is full of people who never had COVID, or who were vulnerable to re-infection with the Delta strain because they had COVID fairly early in the pandemic. Part of that is due to simple math; but part of it likely has to do with mitigation efforts undertaken earlier in the pandemic, for which patience has simply worn thin.

      Third, even though Florida has made rapid progress in scaling the ranks of dead and disabled COVID victims, nationally, it's important to remember that they embraced vaccinations early on. There was rapid - if inequitable - rollout of the vaccine in some communities in Florida, while other states in the South simply didn't do even that. So Florida doesn't fit neatly within either the "COVID hoaxer" or "COVID warrior" camps. They've taken a more mixed and evolving (perhaps "devolving" would be the better word) approach.

    2. "As most people now recognize, natural immunity is much stronger than vaccination."

      By most people I assume you mean those without medical degrees?

      1. Moderation4ever
        November.13.2021 at 5:49 pm
        Flag Comment Mute User
        "As most people now recognize, natural immunity is much stronger than vaccination."

        By most people I assume you mean those without medical degrees?"

        Its well known by everyone who looks at the current data. Including everyone with medical degrees that actually looks at the current data

        1. You haven't looked at the "current data."

  10. Great democracy in which we live here ... where fundamental and inalienable rights of the citizenry are determined by lottery.

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