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.
The Fifth Circuit has affirmed its stay of the Biden vaccine mandate on employers with 100+ employees. I will continue to fight this and Biden’s other two vaccine mandates until they can no longer threaten your liberty … or your job. Read more here: https://t.co/PUAYdhqBGa pic.twitter.com/qD1taCVSZ1
— Lynn Fitch (@LynnFitchAG) November 13, 2021
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.
“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.”
Frank Corder
