Good news for Biden or bad news?
Lawsuits challenging Biden workplace vaccine rule sent to 6th Circuit
A judicial panel on Tuesday consolidated 34 lawsuits challenging the Biden administration’s workplace COVID-19 vaccine rule in the 6th U.S. Circuit Court of Appeals, a venue favored by opponents of the rule.
President Joe Biden announced plans for the vaccine requirement in September, seeking to stem a surge in COVID-19 cases and get more people back to work.
The Cincinnati appeals court was chosen randomly and will take up the challenges to the rule, which compels employers with at least 100 workers to mandate COVID-19 vaccination or weekly testing combined with face masks at work.
The court, which has 10 Republican-appointed judges and five appointed by Democratic presidents, was the venue where Kentucky, a conservative media company and religious groups filed their challenges.
In court, the administration must show that a “grave danger” required an emergency standard, which allows the agency to bypass a years-long rulemaking process.
OSHA has issued 10 emergency standards in its 50-year history, and of six challenged in court, only one survived intact.
Proving that “grave danger” at this point in the Chinese coronavirus pandemic is going to be rather tough, especially when the rule picked January 4th as the start date. If it was such a grave emergency, why then? Why not make it sooner? And, yes, once Brandon loses, it’s expected to go to the Supreme Court. And visa versa. I doubt the plaintiffs will lose, though, because this is the kind of rule you implement in the spring of 2021, not January of 2022.
More:
President Biden was warned that he lacked the power to mandate vaccines for private workers, but he ordered the Occupational Safety and Health Administration to do it anyway. Late Friday came a sharp rebuke by the Fifth Circuit Court of Appeals that marks an important check on the runaway administrative state.
“The Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary,” Judge Kurt Engelhardt wrote for the unanimous panel in a withering opinion that extends the court’s earlier stay on the OSHA mandate, which had been challenged by GOP states, numerous employers and individuals.(snip)
The court’s opinion takes apart the OSHA mandate every which way—on constitutional, statutory and procedural grounds. The Constitution gives states, not the federal government, the police powers to regulate individual behavior to protect public health and safety. The Administration tried to circumvent this limitation on federal power by conscripting private employers via an OSHA “emergency temporary standard.”
Under federal law, OSHA may bypass for six months the notice-and-comment required by the Administrative Procedure Act to respond to emergencies if it determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that such a standard is “necessary to protect employees from such danger.”
As the appeals court explains, OSHA failed to satisfy either condition. OSHA couldn’t show exposure or even the presence of Covid at all covered workplaces. Its “attempt to shoehorn an airborne virus” widely present in society and not life-threatening to most workers “into a neighboring phrase connoting toxicity and poisonousness” is a “transparent stretch.”
How does Biden’s rule possibly stand? Though, I do like the part where it says “The agency is not requiring the use of face coverings by workers who are fully vaccinated because vaccination is sufficient to reduce the grave danger to themselves or others.” Perhaps we can keep that, since there is severability in the rule
Do not count on the Sixth Circuit Court of Appeals. It was in that court that Reichsstatthalter Andy Beshear’s (NSDAP-KY) orders closing private schools was allowed to stand.
We had to wait until the state legislature came back into session to pass laws restricting his ’emergency’ authority under KRS 39A, but, in the meantime, he continued to exercise dictatorial power.