There’s no doubt that the Supreme Court will have the final say in the legality of Joe Biden’s vaccine mandate. It’s widely believed that, given the ideological makeup of the high court, the mandate will literally be dead on arrival.
But there’s more to the fight over the vaccine than determining the mandate’s constitutionality. There are more than a dozen lawsuits filed by states, business groups, and private religious organizations in 10 separate appeals court jurisdictions. As is the custom, a lottery will be held to determine where the consolidated cases will be heard.
The 5th Circuit Court of Appeals said on Friday that the rule promulgated by OSHA to enforce the mandate was a “one-size-fits-all sledgehammer” that made virtually no allowances for differences in businesses or industries. The 5th Circuit in New Orleans is the nation’s most conservative, but there are several far more left-wing courts where the vaccine mandate would be expected to receive a more sympathetic hearing.
Each U.S. Circuit court that is hearing at least one of the lawsuits (in this case, nearly all of them) gets the equivalent of a raffle card. The clerk of the Judicial Panel on Multidistrict Litigation will then place those cards in a literal drum, mix them around, and select one at random, at which point the winning Circuit court will become the venue for the combined lawsuit. Until 1988, Bloomberg Law reported, the process instead relied on which parties could get their cases stamped for review first.
Whether the vaccine mandate is struck down — a possibility even in a liberal court — the key issue will be whether or not the federal government will be allowed to force people to be vaccinated before the case is settled — presumably in the Supreme Court. The 5th Circuit decision forbade the government to make any preparations to enforce the mandate. But a liberal appeals court could allow some provisions of the mandate to go forward, giving OSHA the power to enforce the rule.
This, in fact, is what the Biden administration has always been hoping for. Their plan is to run out the clock on legal challenges, hoping to force millions of people to get jabbed. That’s not going to happen if the 5th Circuit ban on federal preparations for the mandate is upheld all the way to the Supreme Court.
At the moment, the odds for the right look pretty good.
According to Bloomberg Law, other state petitions filed so far have landed in the Sixth, Eighth, and Eleventh U.S. Circuit Courts of Appeal, which have majorities of GOP-appointed judges (in the Eighth, only one judge was appointed by a Democrat). If the case lands in a sufficiently conservative jurisdiction, and the three-judge panel randomly selected to overhear it ends up being composed of justices hostile to the administration, the mandate could risk being dead on arrival. On the other hand, the Circuit court it lands with could vote to vacate the Fifth Circuit’s rulings that stayed the rule.
The issue isn’t going away even if the Supreme Court rules against the mandate. The custom in recent years has been for the administration to go back to the drawing board and rework the rule, changing the wording just enough to begin the legal process all over again. Donald Trump used this tactic on some of his immigration rules. Biden has already used it on the “Remain in Mexico” policy.
Hopefully, by the time the Supreme Court is finished with it, the mandate will be so thoroughly discredited that Biden won’t even bother trying again.