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Fifth Circuit Slams the Brakes on Biden’s Workplace Vaccine Mandate Due to ‘Grave Statutory and Constitutional Issues’


A medical assistant inserts into the arm the needle of a syringe containing the Johnson & Johnson Covid-19 vaccine.

The Fifth Circuit Court of Appeals on Saturday issued a temporary stay against a bevy of federal agencies — led nominally by the Occupational Safety and Health Administration — that prevents the Biden administration from enforcing a vaccine mandate for private employers “pending further action by this court.”

An appellate panel issued the Saturday stay because the case gave three judges “cause to believe there are grave statutory and constitutional issues with the Mandate,” an unsigned per curiam opinion indicates.  Judges Edith Jones (a Ronald Reagan appointee) and judges Kyle Duncan and Kurt D. Engelhardt (both of whom are Donald Trump appointees) made up the panel that issued the temporary stay.

The panel of judges demanded that lawyers for the federal government file any objection to a permanent injunction against the vaccine mandate by 5:00 p.m. Monday.  The petitioners — a collection of businesses who are upset about the mandate — must file a response by 5:00 p.m. on Tuesday.

The swiftly moving litigation by a collection of plaintiffs-turned-petitioners (and several states) alleges that a so-called “emergency temporary standard” (the vaccine mandate) issued by OSHA was pumped out with illegal haste. They allege that they may permanently lose employees in today’s tight labor market — some of whom they fear will not come back — if the Biden administration’s vaccine mandate is allowed to take effect.  Some of their legal arguments (filed by the companies Burnett Specialists; Choice Staffing, LLC; and Staff Force, Inc.) read as follows:

On November 5, 2021, Respondent Occupational Safety and Health Administration (“OSHA”) published an emergency temporary standard involving COVID-19 vaccination of private-sector employees, 29 C.F.R. § 1910.501 et seq. (2021) (the “ETS”). Due to the unique nature of emergency temporary standards, the ETS will take effect without any notice, public comment, or review. Section 6(c)(1) of the OSHA Act. Even under normal circumstances, an ETS is an extraordinary power that should be—and has been—judiciously exercised. But this particular ETS represents a unique and unprecedented assertion of federal authority: namely, the power to coerce at least 80 million Americans to inject an irreversible vaccine into their bodies, under threat of losing their livelihoods and threat of fines and other penalties against Petitioners.

Those petitioners argued that the mandate “represents an unconstitutional delegation of authority from Congress to the executive branch” and “therefore violates the non-delegation doctrine under Article I, Section 1 of the U.S. Constitution.”  They argued that the vaccine mandate “will cause irreparable harm” and that the “public interest favors issuance of a stay” by the Fifth Circuit — and the intermediate appellate court agreed.

Joe Biden said the mandate would require businesses  with “100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work,” notes the petitioners’ motion for a stay.

It continues:

OSHA published the ETS on November 5, 2021. In addition to requiring employers to check the vaccination status of their employers or to require weekly COVID-19 tests, 29 C.F.R. § 501(e) and (g), it also requires employers to give employees paid time off to obtain and recover from a vaccination, 29 C.F.R. § 501(f). Unvaccinated employees are required to wear masks when in close contact with others while at the workplace. 29 C.F.R. § 501(i). Failure to comply with the ETS could result in penalties of $13,653 per violation and $136,532 per willful or repeated violation. 29 C.F.R. § 1903.15(d).

“The current labor market is the tightest that Petitioners have ever seen, making attracting and retaining employees very difficult,” the document asserts.  “Because the temporary worker labor market is very fluid and unstable, Petitioners are concerned that the vaccination, testing, and masking requirements of the ETS will cause them to lose employees, many of whom will never return.”

The plaintiffs/petitioners — who number into the dozens — are led nominally by BST Holdings, LLC.  They include the states of Texas, Louisiana, Mississippi, South Carolina, and Utah.

Read the petitoners’ motion for the stay below:

Read the 5th Circuit’s stay of the case below:

Editor’s note:  this report has been updated to contain additional details about the plaintiffs/petitioners.

[Image via Tobias Schwarz/AFP/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.