Saying that Joe Biden’s vaccine mandate “grossly exceeds OSHA’s statutory authority,” the U.S. Court of Appeals for the Fifth Circuit in New Orleans reaffirmed its original decision made on Nov. 6 to block OSHA from taking any steps to enforce the mandate.
The three-judge panel will probably not have the last word on the mandate. A judicial lottery will be held next week to determine in what circuit the several challenges to the mandate will be heard. The New Orleans-based circuit court that ruled last night is one of the most conservative in the nation.
The judges didn’t mince any words in stating how they felt about the mandate.
“Rather than a delicately handled scalpel, the Mandate is a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address,” they wrote.
They said they believed that the ruling imposed a financial burden on businesses and potentially violated the commerce clause of the Constitution.
“The Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” they wrote.
It’s important to note that the legal landscape is now decidedly tilted against the mandate. The administration is now going to have to prove that there is a “grave danger” to workers and that the danger is “immediate.” That’s a difficult standard to meet.
It’s also important that all efforts to impose the mandates must cease. Another appeals court may allow preparations to enforce the mandate to go forward, but for the moment, OSHA and the Labor Department are stymied.
The mandate requires all businesses with over 100 employees to enforce the OSHA rule that’s supposed to take effect on Jan. 4 requiring all employees either get a shot or get tested. It’s being challenged by 27 states, several private religious groups, and employer associations.
Certainly, the Biden administration is hoping it gets a friendlier venue to plead its case or, at the very least, find an appeals court that allows preparations for the mandate to go forward. Biden is hoping to run out the clock on the legal challenges, delaying a final legal determination by the Supreme Court for as long as possible in hopes that he can force as many citizens to get vaccinated as possible.
Yet to be adjudicated in court is the legality of firing someone for not getting vaccinated. That’s a separate issue of employment law and will probably have to wait for a determination of the legality of the mandate.
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