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We wait on the Fifth Circuit

They have received briefs and held a hearing about whether to keep or lift their hold on the Biden COVID vaccine mandate for employers.

A coalition of businesses argued in federal court Tuesday that they would suffer “irreparable harm” if the court fails to permanently halt the Biden administration’s Covid-19 vaccine-or-test mandate for large businesses as the legal challenges make their way through the courts.

Several staffing companies, religious employers and other businesses said in a court filing that the Fifth Circuit Court of Appeals should permanently block the standard “to protect Americans from being coerced to comply with the unconstitutional vaccine mandate during the pendency of this litigation,” after the court issued a temporary stay last weekend.

The Fifth Circuit challenge, led by Texas, is just one of at least a dozen lawsuits filed against the mandate by mostly Republican governors, conservative organizations and business groups, who say the mandate is an unconstitutional overreach of power by the federal Occupational Safety and Health Administration.

Comparing the vaccine-or-test mandate to the Biden administration’s eviction moratorium, business groups suing over the vaccine rule pointed to the Supreme Court’s decision in August to knock down the eviction ban. Then, the high court found in the case of the eviction moratorium, that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends” and that Congress must specifically authorize such policies.

“Just a few months ago, the Supreme Court explained that the Centers for Disease Control and Prevention (CDC) could not unilaterally grant itself control of the nation’s housing market,” the business groups wrote in a Tuesday court filing. “Sweeping authority must come, if at all, from Congress.”

The emergency rules released by the Department of Labor last week require private businesses with more than 100 employees to ensure their workers are vaccinated or have them submit to weekly testing by Jan. 4.

The Biden administration said in a court filing Monday that the mandate was well within OSHA’s authority and that a permanent stay “would likely cost dozens or even hundreds of lives per day.”

Attorneys for OSHA and the Labor Department told a panel of judges for the New Orleans-based Fifth Circuit Monday that the legal argument lodged by states and businesses conflicts with earlier court rulings and federal law, and is unlikely to succeed.

They also said businesses and states challenging the rule don’t have the grounds for “emergency” relief because the effects of the mandate won’t be in place for another month.

See here for the background. I find it best for my sanity to always expect the worst from the Fifth Circuit, so I’m just going to take some deep breaths and try to think about other things. You night appreciate this Twitter thread from Raffi Melkonian about the arguments some of the companies that oppose the Biden mandate are making, and this Twitter thread from Karen Vladeck about the procedural aspects of this case. I’ll have more when the court says something.

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8 Comments

  1. Jason Hochman says:

    The Twitter thread is a buncha drivel. They start talking about steel toed shoes and every other non related irrelevant thing. There is nothing constitutional about Biden’s crazed order. There is no sanity in believing in his authority. HE KILLED MORE PEOPLE THAN TRUMP. Yes, Trump killed out of hate and racism, and Biden out of stupidity and dementedness, but still, no reason to take his word on vaccines. Nothing in the the constitution allows the order of one person to order millions of people to do something. But if the constitution can fail to stop this, it’s time to start thinking about decentralization.

  2. Ross says:

    Jason, Biden ahs not ordered anyone to take a vaccination. He has told employers that their employees need to be vaccinated. The employees can choose not to be vaccinated, but there may be consequences. I have no issues with the EO. I am not sure why you want people to die from a disease that is preventable, or minimized, by a simple shot.

  3. Jason Hochman says:

    Ross, people should have the choice, and, most people who will get the illness are going to recover. Biden has ordered OSHA to make some rule, and the employers can be fined tens of thousands of dollars for accidental omissions, and hundreds of thousands for intentional noncompliance. Meanwhile, workers, already suffering by the abuses of their corporate masters, will have even more control rammed down their throats by their corporate masters. This is a direct descendant of slavery.

    Also, Biden derisively mocked the US people, with his big Bubba imitation voice, “I have the freedahm ta killya wid mah COVID!” I’ve never seen such a hateful president mocking the US people. And Biden is one to ridicule people for being dumb. He was never very intelligent, but, at this point he’s completely out of it. You must remember, that the hated “anti vaxx” people are not the aggressors. They don’t want to be forced to do anything, nor do they want to force anyone else. Their belief is if you want to get a vaccination, do it, and if you don’t, then don’t.

    It’s important to remember the fact OSHA, which is in charge of forcing employers to do this, has stated, openly, on its Web site, ” As a result, OSHA will not enforce 29 CFR 1904’s recording requirements to require any employers to record worker side effects from COVID-19 vaccination at least through May 2022. We will reevaluate the agency’s position at that time to determine the best course of action moving forward.” In other words, they are abdicating their lawful responsibility, until at least May 2022, and, as a result, if your work orders you to get vaccinated, and you are injured by it, you ain’t getting workers comp. Why do you want workers to suffer? And, of course the vaccinations are “safe and effective” if we ignore any evidence to the contrary.

    Biden, Mrs. Harris, Fauci, and all the others also lied, when they said mandating vaccinations was not a good idea, not in their plans, and that the government had no power to do so. How quickly they changed after the voters were deceived.

  4. SocraticGadfly says:

    We also wait to see what the Fifth will do with the mask mandates in school district court ruling!

  5. SocraticGadfly says:

    Actually, Ross, re Jason’s nuttery, Biden hasn’t even said that.

    It’s an alternative: EITHER vaccinate all your employees OR require regular, weekly, rapid-result testing.

    Businesses would surely prefer the former.

    So, technically, it’s NOT a “vaccine mandate.”

    Jason? People should also have the choice of working in a safe place.

    Shutcher libertarian pah-hole.

  6. Jason Hochman says:

    Gadlfy, it is not my nuttery, it is Biden’s nuttery. The testing is of course, not completely accurate, and testing weekly doesn’t mean that someone hasn’t had the world’s deadliest virus for the last six days. And, of course, employers don’t have to pay for the weekly testing, the workers could be required to pay it outta pocket. Why do you want to take away the few rights that workers have?

    What is this BS about “people should have the choice of working in a safe place?” Are you saying that if you are vaccinated, and your co-worker is not, then you aren’t in a “safe place?” So then, your vaccine doesn’t work? You can’t have it both ways. Either your vaccine works or it doesn’t.

    While you are on this kick about safe workplaces, why haven’t you been doing something about the workers trapped in mines, or the people in the chicken factories, or any number of other dangerous workplaces. Why? Because you may be Selfish. You may have been scared into a corner by the government alphabet soup, and out of your selfish desire to not be afraid, you want everyone forced to conform to the false ideas put in your head by the government and CNN. You may be selfish, just sayin. You shouldn’t be mad at libertarians. You should just admit that the CNN, CBS, and the CDC, FDA, NIH, and the DNC have all lied to you, just admit it, nobody is going to blame you for being fooled, and then you can move on with normal life.

  7. SocraticGadfly says:

    Oh, stop with the “your vaccine doesn’t work” bullshit.

    And, stop even more with the strawmanning that I don’t care about other safe spaces. I’m a leftist ex-Green, you POS.

    That would be “piece of selfishness,” Josh.

    Freud called it “projection.” I’m handing you a mirror.

  8. Jason Hochman says:

    Not a straw man argument, b/c it directly addresses your crocodile tears over “worker safety,” when, in reality, you are motivated by self interest, because, just like “my mask keeps you safe,” they have flipped to “my vaccine keeps you safe,” and now, you are in terror of anyone not vaccinated, boosted, and masked, even though there is no evidence that my mask or my vaccine keeps you safe. And yes, if your vaccination works, you shouldn’t have to worry. For example, are you worried about someone not vaccinated for polio coming to work? Of course not. The polio virus is a DNA virus, not an RNA virus. I don’t know of any vaccine for an RNA virus that isn’t leaky.