This evening, the Fifth Circuit reaffirmed its stay of President Biden’s illegal federal vaccine mandate. Setting the order in context, the court recorded that
in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived.
This one was not among them. Having considered whether “the petitioners’ challenges to the Mandate are likely to succeed on the merits,” the court decided that, “for a multitude of reasons, they are.”
Why? Well, for a start, the court affirms that the Act that created OSHA
was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways
And, irrespective, the mandate itself is “fatally flawed” because its
strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat)
But other than that, Mrs. Lincoln, how was the play?
As the court noted, the president’s decision to “bypass typical notice-and-comment proceedings for six months by providing ‘for an emergency temporary standard to take immediate effect upon publication in the Federal Register'” is obviously cynical and self-serving, given that “emergency temporary standards” are supposed to be “an ‘unusual response’ to ‘exceptional circumstances'” and that the “Mandate at issue here is anything but a ‘delicate exercise’ of this ‘extraordinary power.’”
Or, put another way: Biden did this because he thought he could, and in a country with a codified constitution, that’s not good enough.
Summing up, the court savaged the move in every possible way. “The Mandate,” it wrote, “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power,” because “a person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.” “To mandate that a person receive a vaccine or undergo testing,” it added, “falls squarely within the States’ police power.” In addition, “concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.”
Oh, and the whole thing relies upon “authority from an old statute employed in a novel manner, imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA’s core competencies, and purports to definitively resolve one of today’s most hotly debated political issues.”