LATE ON FRIDAY NIGHT, the Sixth Circuit, in a three-judge panel, reinstated, in a 2-1 ruling, the Biden Covid-19 vaccine mandate for private businesses with more than 100 employees. One judge in the panel was Democrat-, and another Republican-appointed, with the one judge being a Trump appointee. The Biden regime’s Department of Labor’s Occupational Safety and Health Administration had imposed the mandate, effective Jan. 4, 2022. To expedite myriad cases around the country challenging the legality of the mandate, they were consolidated and, by lottery, sent to the Cleveland-based appeals court for de novo review after the Fifth Circuit had preliminarily stayed the mandate. The 57-page Opinion of the Sixth Circuit can be read in its entirety here.
An appeal to the U.S. Supreme Court was immediately filed on Friday by the small business group called Job Creators Network. The appeal stressed the hardship the mandate would impose on small businesses still suffering economic consequences from the pandemic, as well as strain their ability to find and retain employees during a worker shortage, though, while true, these are hardly the most compelling reasons Friday’s ruling was improper. Other appellants are following suit in appealing.
The background of the consolidated cases is well documented in the majority opinion, including OSHA’s mission, and its jurisdiction to the extent it has been tested. The opinion stressed the enabling statute’s “broad authority [vested in OSHA] to promulgate different kinds of standards” for health and safety in the workplace. (brackets mine.) And under the Administrative Procedure Act, like other administrative agencies of the executive branch, OSHA must generally use a ‘notice-and-comment’ process prior to agency rule-making. When Congress delegated its specific authorities to OSHA, however, it contemplated the possibility of “extraordinary and exigent circumstances” arising, requiring emergency rule-making for which notice-and-comment may cause undue delay. The Emergency Temporary Standard was thereby codified. Fair enough. This E.T.S., in fact, is the authority for the Covid vaccine mandate. This is where many, like me, call foul.
The lower court had stayed the mandate, concluding “a stay will do OSHA no harm whatsoever” and “a stay is firmly in the public interest.” These are two of the required elements that must be shown to issue a stay under applicable case law.
The majority here, however, called poppycock, but didn’t proffer a harm OSHA would sustain, nor any rationale why “the public” isn’t interested in having a say about their own health and vaccine status. Instead, the majority simply insisted a stay cannot be granted as a matter of right as it constitutes “extraordinary relief.” But they conveniently omitted the first two elements required for a stay, namely, a preliminary determination that the applicant is likely to succeed on the merits, and whether the applicant will be irreparably harmed absent a stay.
Given the breadth, depth, scope, scale, and possible dangers associated with such a far-flung mandate, and given how it isn’t carefully tailored to address a specific rather than generic harm, it’s hard to see how OSHA would prevail after a thorough legal analysis using available epidemiological knowledge. And it really shouldn’t take much imagination to envisage the possibility of serious physical harm arising from the nondiscriminatory use of an untested vaccine using new mRNA technology to deliver it. Extracting attenuated virus particles or proteins from the bloodstream and the organs it nourishes is clearly more difficult than, say, simply putting toothpaste back in the tube.
After dicta on the dangers posed by viruses generally, and the novel coronavirus specifically, the majority opinion ruled, in a conclusory manner, that OSHA had “clear and exercised authority to regulate viruses,” and therefore, the authority to regulate infectious diseases that are not unique to the workplace. I’m sure viruses might disagree with that leap of logic that jumps as fast as the most robust contagion spreads amongst vulnerable hosts. Nor will said regulated viruses simply promise to be good and not infect in the workplaces of dutiful employers and instead, focus their nefarious attention to those not employed or working at any given moment.
The majority also stressed that the vaccine mandate doesn’t even require vaccines at all. Rather, it requires vaccination or, in the alternative, mandatory continuous masking and mandatory weekly Covid testing, though it is up to the employer to decide which of the two (either or both) it chooses to utilize. This, though, concedes that vaccines are not the only way to address dangers posed by Covid. And it certainly isn’t the least restrictive means, from either a utility or liberty standpoint. From a practical standpoint, the “choice” really isn’t: vaccines are ‘free.’ Masks and tests are not. And vaccines don’t need to be monitored by employers as rigorously. Let’s see: which would you chose for your workers? The choice that isn’t…
The majority noted that only private businesses with over 100 employees were affected, so it wasn’t unduly burdensome on smaller concerns. I’m pretty sure the 99th employee who contracts Covid from somewhere, anywhere will not be duly impressed by the ‘safeguard.’ Nor will the regulated virus be attenuated simply because it infects, say, the 20th, 31st, or 98th employee host of only 100 prospects. But this mandate isn’t about science, despite proclamations to the antithesis. It’s politics.
There may a circumstance where OSHA has the legitimate, lawful authority to issue a properly noticed-and-commented vaccine mandate, for instance, for health-care workers who have contact with physically vulnerable people, or for military members deployed for active duty. Here, the dangers of contracting Covid pose a clear and significant risk to others performing work in the same arena. A hospital full of infected workers poses danger, not only to the patients themselves, but also to fellow medical personnel performing a critical service. In the case of military, it could be devastating to a war or defense effort to have highly contagious soldiers circulating in cramped quarters.
There, however, the workforce affected by the mandate is limited to the smallest population possible to effectuate the goal of workplace safety, and to where other measures cannot be practically or effectively employed. If plexiglass barriers, air filtration systems, or contact-less payment systems can be used to the same effect in ordinary circumstances, why not? In many cases, these efforts are preferable and perhaps even more effective at keeping workers safe from viruses, that — let’s be honest — cannot really be regulated. They are certainly less onerous to the employee.
Likewise, as OSHA may, under limited circumstances, be authorized to make vaccines mandatory for a selective group of employees, so might another agency, say, the Department of Health and Human Services, be allowed to do so. In the case of H.H.S., there is surely a more compelling case to find such authority, given its charge is the delivery of health care services, of which vaccines may be a part.
There is also the big question/emergency problems with the majority opinion delivered on Friday. If this is such an dire emergency that it requires the extraordinary step of OSHA using its emergency powers, bypassing the usual statutory checks and balances, why on Earth did it take them so long to mandate vaccines that have been in existence, unchanged to the best of my knowledge, for over a year? (Yeah, I know. Trump.)
And where was Congress? The legislative branch (arguably as practiced, in my opinion) may delegate some of its law-making to administrative agencies, who then issue rules under the narrow province of the delegation. But the big-picture stuff falls squarely on Congress’ laps. Whether the legislative history, applicable statutes, and case law can support such a degree of delegation that the majority found here definitely isn’t a matter of legal certainty, and given the gravity of the matter, the wiser course of action here is none, i.e., erring of the side of caution. On the side of leaving the toothpaste in the tube until needed.
After all, a private employer can, on their own initiative, require vaccination, masking, social distancing, or any of other possible safety measures for their workforce without any action at all from Congress, OSHA, or any other agency or branch of government. So, too, can an individual take it upon him/herself to avail themselves of these practices to prevent infection. It’s called taking responsibility for oneself. True, people don’t know how to be responsible with an unknown danger.
But, I submit, neither does government, unless, of course, they are withholding relevant information. That they don’t is suggested by the waivers they require the vaccinated to sign at the behest of the pharmaceutical companies that rushed the science to get the jabs to market. They may be perfectly safe. Or not. Who knows? Therein lies the rub, which is exactly the point.
These are only preliminary thoughts on this important Opinion. I do note, with delight, the possibility that Judge Gibbons, in his concurrence, may have set up an ideal opportunity to retest Chevron deference, a judicial doctrine which, simply put, grants deference to an agency determination.
I further note several news accounts have a pessimistic outlook for the appeal which I do not share entirely. While it’s true deference is also given lower courts by the reviewing tribunal, this case involves more questions of law than of fact, and those questions of law are clearly disputed and obviously not settled.
But one never knows: after all, who’da’thunk Biden would get all those votes, huh? I will likely have more to add to this in coming days.
We can’t bury the ever-so tedious scandal regarding Hillary Clinton’s emails yet: Judicial Watch got a break in court last week. 
sua sponte 