The Corner

Law & the Courts

BREAKING: Federal Appeals Court Stays Biden’s Vaccine Mandate

President Joe Biden delivers remarks on response in the aftermath of Hurricane Ida from the White House in Washington, D.C., September 2, 2021. (Jonathan Ernst/Reuters)

The United States Court of Appeals for the Fifth Circuit, based in New Orleans, has issued a terse order temporarily halting the Biden Occupational Safety and Health Administration’s Emergency Temporary Standard “pending expedited judicial review.” The court cited no particular grounds, but noted that “because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.” The Biden OSHA was directed to file its brief by 5 p.m. on Monday, and the challengers (which include the States of Texas, South Carolina, and Utah, and a battery of business and religious employers) must file by 5 p.m. on Tuesday. Presumably, such an aggressive briefing schedule means that the court will hear argument within days and rule swiftly. The panel included Edith Jones (a Reagan appointee) and two Trump appointees, Kurt Engelhardt and Kyle Duncan. Whatever the Fifth Circuit panel decides, it is unlikely to be the last word.

There are a battery of legal issues around OSHA’s rule, involving both the overall scope of OSHA’s powers and the specific use of an emergency rule. The challengers, however, may first have to explain why their lawsuit is ripe to be heard two months before the rule has gone into effect, a case that depends in good part on the burdens of preparing to comply with it.


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