Skip to content
Fifth Circuit reaffirms stay on...

Fifth Circuit reaffirms stay on Biden’s COVID vaccine mandate calling it “fatally flawed”

By: Frank Corder - November 15, 2021

Judge says public interest served by maintaining constitutional structure and liberty of individuals even when it frustrates government officials.

On Friday, the Fifth Circuit Court of Appeals reaffirmed its stay on President Joe Biden’s federal COVID vaccine mandate on businesses with 100 or more employees, stating clearly that “OSHA take no steps to implement or enforce the Mandate until further court order.”

“On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review,” the opinion states. “Having conducted that expedited review, we reaffirm our initial stay.”

Mississippi is among the states that filed the legal action to challenge the federal mandates on November 5th. A day later, the appeals court issued the stay. Eleven states, along with companies, filed the petition claiming that the federal vaccine mandate was unconstitutional.

Attorney General Lynn Fitch says she will continue to fight this mandate by the President as well as the other two that require federal contractors and federal workers to be vaccinated.

Circuit Judge Kurt Engelhardt writes that in its fifty-year history, OSHA has issued just ten Emergency Temporary Standards. Six were challenged in court and only one survived.

See the source image

“The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that ‘[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,’ so ‘[t]hat power should be delicately exercised, and only in those emergency situations which require it,'” Judge Engelhardt states.

He goes on to opine that the federal mandate is “fatally flawed on its own terms,” in that it is overinclusive and underinclusive as it relates to the arbitrary way in which businesses are impact based on a certain number of employees.

Judge Engelhardt also questions the “emergency” nature of the mandate given that the pandemic is nearly two years old. He also points out that OSHA itself spent nearly two months responding to the President’s order.

The Judge goes on to question whether COVID now poses the kind of “grave danger” required to impose such wide reaching mandates, calling it overbroad.

Further, the opinion states that the mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power, and courts have rejected the use of the Commerce Clause to exercise a police power.

Judge Engelhardt writes that 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 Judge concludes. “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.”

About the Author(s)
author profile image

Frank Corder

Frank Corder is a native of Pascagoula. For nearly two decades, he has reported and offered analysis on government, public policy, business and matters of faith. Frank’s interviews, articles, and columns have been shared throughout Mississippi as well as in national publications such as the Daily Caller. He is a frequent guest on radio and television, providing insight and commentary on the inner workings of the Magnolia State. Frank has served his community in both elected and appointed public office, hosted his own local radio and television programs, and managed private businesses all while being an engaged husband and father.
Previous Story
News  |  Frank Corder  • 
January 26, 2023

YP Daily Roundup 11/15/21