By Kyle Becker
Becker News, 13 November 2021
A federal appeals court has delivered a serious blow to President Biden’s unlawful federal vaccine mandate. The Fifth District Court of Appeals’ decision to maintain an emergency stay over the objections of the Biden administration was rendered late Friday evening and underscores the earlier ruling that the vaccine mandate incurs “grave statutory and constitutional issues.” The legal decision’s ramifications are being interpreted by legal analysts as ‘national in scope.’
The three judges on the panel ruled against the Occupational Safety and Health Administration, the agency that issued the mandate, as well as numerous concerned parties in the Biden administration who believe the emergency stay should be lifted. The OSHA regulation extra-legally mandated that workers in all business with 100 or more employees be “fully vaccinated or regularly tested for Covid-19 by Jan. 4.”
The Biden administration has exacerbated its unlawful issuance of the federal vaccine mandate by instructing employers to ignore the courts.
“People should not wait,” White House Deputy Press Secretary Karine Jean-Pierre told reporters on Monday after the initial ruling. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”
The Biden administration does not have the legal authority to issue such a sweeping mandate, the Fifth District Court of Appeals decided in its ruling to uphold the emergency stay on Friday. The court’s many reasons why the federal vaccine mandate is unlawful should be read in full, since the mainstream media has censored or selectively edited the actual ruling to limit its impact. Nonetheless, the judges’ ruling is devastating to the vaccine mandate.
“A natural first step in enacting a lawful ETS [Emergency Temporary Standard] is to show that employees covered by the ETS are in fact exposed to the dangerous substances, agents, or hazards at issue—here, COVID-19,” the court said. “As it pertains to the vast majority of private employees covered by the Mandate, however, OSHA fails to meet this threshold burden. In defending the Mandate before this court, the Government credits OSHA with describ[ing] myriad studies showing workplace [COVID-19] ‘clusters’ and ‘outbreaks’ and other significant ‘evidence of workplace transmission’ and ‘exposure.’ But this misses the mark, as OSHA is required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces.”
“Equally problematic, however, is that it remains unclear that COVID19—however tragic and devastating the pandemic has been—poses the kind of grave danger [the statute] § 655(c)(1) contemplates,” the court added.
The Fifth District Court of Appeals, significantly, points out that several members of the Biden administration spoke out against a federal vaccine mandate before ultimately issuing one. This includes President Biden, White House Press Secretary Jen Psaki, CDC Director Dr. Rochelle Walensky, and NIAID Director Dr. Anthony Fauci.
“The Administration’s prior statements in this regard further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS,” the court pointed out. “In reviewing agency pronouncements, courts need not turn a blind eye to the statements of those issuing such pronouncements. In fact, courts have an affirmative duty not to do so. It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.”
The court even raises the issue that OSHA itself acknowledges the inherently coercive nature of vaccine mandates.
“Health in general is an intensely personal matter. . . . OSHA prefers to encourage rather than try to force by governmental coercion, employee cooperation in [a] vaccination program,” the court cited from a letter from an assistant OSHA secretary named Loren Sweatt to the head of the AFL-CIO at the time, the late Richard Trumka.
The OSHA letter goes on to reveal in damning fashion that it “would not be necessary for OSHA to issue an ETS to protect workers from infectious diseases” because “OSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a ‘grave danger’ for which an ETS is an appropriate remedy.”
“In sum, as OSHA itself has previously acknowledged, an ETS appears to be a ‘poorly suited approach for protecting workers against [COVID-19] because no standard that covers all of the Nation’s workers would protect all those workers equally’,” the court added.
The Fifth District Court of Appeals hammered the Biden administration for another “tell-tale sign” that the Covid pandemic is no longer a true emergency. It strikes at the heart of OSHA’s limited mandate for businesses with 100 workers or more and not all businesses.
“At the same time, the Mandate is also underinclusive,” the court points out. “The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer. The reason why? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate. That may be true. But this kind of thinking belies the premise that any of this is truly an emergency. Indeed, underinclusiveness of this sort is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact ‘compelling’.”
The appeals court’s language is strikingly adamant that the “mandate” does not even come close to passing constitutional muster.
“If the deficiencies we’ve already covered aren’t enough, other miscellaneous considerations seal the Mandate’s fate. For one, ‘[t]he Agency cannot use its ETS powers as a stop-gap measure,’ but concedes that that is precisely what the Mandate is intended to do here,” the ruling added.
Furthermore, it should be added in addition to the court’s explicit reasoning, the delayed timeline from OSHA itself throws into serious question whether or not the mandate is grounded in the ’emergency powers’ of the executive branch. The United States is nearly two years into the Covid pandemic, and indeed, over 160 million Americans have had Covid-19 and survived it with natural immunity, according to the CDC’s calculations. There is also the issue that OSHA is waiting until ‘after the holidays’ to enforce the mandate, which underscores that the agency is not addressing a true ’emergency.’
Whether or not the federal appeals court gets the last word remains to be seen. However, the judges convincingly put the nail in the coffin for Biden’s federal vaccine mandate in terms of its unconstitutionality.
“It lastly bears noting that the Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits, or at least counsel against adopting OSHA’s broad reading of § 655(c) as a matter of statutory interpretation,” the court said.
“First, the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power,” the ruling states. “A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.” [The court the cited NFIB v. Sebelius (2012) with Chief Justice John Roberts concurring.]
“And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power,” the court continued, adding that precedent had long “settled that it is within the police power of a state to provide for compulsory vaccination.” [Jacobson v. Massachusetts (1905).] “The Mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing. 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.”
“Second, 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,” the ruling continued. “As Judge Duncan points out, the major questions doctrine confirms that the Mandate exceeds the bounds of OSHA’s statutory authority.”
“Accordingly, the petitioners’ challenges to the Mandate show a great likelihood of success on the merits, and this fact weighs critically in favor of a stay,” the court decided. The judges ruled that the failure to grant the stay would cause irreparable harm to the petitioners, as well as affected companies and employees. It adds that the emergency stay is “in the public interest.”
“The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials,” the court held.
Ultimately, the Court rebuked the mandate because such powers fall within the Legislative Branch, and not the Executive Branch.
“The Constitution vests a limited legislative power in Congress,” the court stated. “For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down.”
“IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order,” the appeals court ruled.
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