The 5th Circuit’s Case Against OSHA’s Mandate

On November 12th, the U.S. 5th Circuit court of appeals granted a stay regarding OSHA’s Emergency Temporary Standard (mandate) regarding COVID-19 vaccines. OSHA suspended enforcement of its ETS Following the November 12th decision. 

The ETS, which extended to most employers with 100 or more employees, required them to adopt a mandatory COVID-19 vaccination policy or implement weekly testing and face coverings for unvaccinated employees, according to an OSHA fact sheet.

The 5th circuit consolidated the case of many private employers protesting against the mandate. According to the justices, the risk imposed on employers by the order is significant grounds for suit.

“Their standing to sue is obvious— the Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” the court writes.

The court continues to argue that the scope of the mandate is well outside of OSHA’s powers. OSHA was not created, they say, to develop broad policy profoundly impacting every member of society.

The court points out that this is supposed to be an “emergency” declaration. Still, the supposed emergency has lasted over two years, and it took OSHA two months to respond to the president’s executive order. If this was an emergency, OSHA was not treating it as such for the last two years. Not only that, but OSHA’s emergency powers are limited, and even in an emergency, the ETS is outside of OSHA’s authority. Their powers should be ‘delicately exercised in ‘limited situations.’

“Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-sizefits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address,” the Justices say.

Despite any tragedy that comes with Covid-19, the court says, it does not seem to pose the grave danger ETS tries to address. Both the Biden administration and OSHA have changed their stance on the state of the emergency, and both previously stated they were against vaccine mandates of this sort.

The court adds that the mandate takes a one-size-fits-all approach and does not consider the varying susceptibility to COVID-19 amongst employees. For instance, a remote worker, a construction worker and a server will all have different levels of risk in their daily activities. While the mandate fails to account for this variance, the court argues that it should be more inclusive if it is such an emergency.

“At the same time, the Mandate is also underinclusive,” the court writes, “The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer.”

The court is asking here, If this was indeed an emergency, would the mandate only be for larger companies? 

Finally, the court gets to the mandate’s constitutionality and says it is unconstitutional for two primary reasons. First, the mandate goes beyond the government’s Commerce Clause authority. Second, the mandate betrays the idea of separation of powers by giving nearly unlimited power to one executive branch agency.

In essence, the commerce clause gives Congress the authority to regulate interstate commercial activity. Correctly or not, Congress has delegated many of these powers to agencies primarily overseen by the executive branch. For this mandate to be valid, it would have to be at least regulating economic activity, but instead, it regulates “noneconomic inactivity.”

“The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power,” The court writes.

Next, the justices argue that OSHA betrays proper separation of powers with the mandate, saying that they cannot control individual conduct in the name of workplace regulation.

“There is no clear expression of congressional intent in § 655(c) to convey OSHA such broad authority, and this court will not infer one,” The court explains, “Nor can the Article II executive breathe new power into OSHA’s authority—no matter how thin patience wears.”

According to the justices, it is clear that the mandate’s enforcement will do irreparable harm to both the reluctant individuals and companies seeking a stay in the case. Individuals would have to choose between their job and the jab, and companies would face irreparable business and financial costs. 

OSHA and the president have gone beyond their authority in this case and violated God-given liberty while doing so.

“In seeking to do so here [make public health policy], OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty,” the court concludes.


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