Fifth Circuit extends hold on Biden employer vaccine mandate

The worst court in America keeps on keeping on.

A federal appeals court kept its block on the implementation on the Biden administration rule that requires large companies to mandate COVID-19 vaccines for employees or carry out weekly testing starting in January. The rule, which the court characterized as a “mandate,” goes “staggeringly overboard” and “grossly exceeds [the Occupational Safety and Health Administration’s] statutory authority,” Judge Kurt Engelhardt wrote in the 22-page ruling that was joined by Judges Edith H. Jones and Stuart Kyle Duncan.

The three-judge panel on the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, issued the ruling saying that the challenges to the rule were likely to be successful so it further prevented the government form moving forward with its implementation. The Fifth Circuit is largely considered one of the country’s most conservative appeals courts and the panel is made up of one judge appointed by President Ronald Reagan and two others appointed by President Donald Trump.

Dozens of lawsuits have been filed in numerous appeals courts against the rule by businesses, religious organizations, and states. Engelhardt said those who opposed the measure, including Texas, Louisiana, Mississippi, and South Carolina, had standing to sue in the Fifth Circuit. “Rather than a delicately handled scalpel, the mandate is a one-size fits-all sledgehammer,” reads the ruling. The judges said the rule imposes a financial burden and could amount to a violation of the Constitution’s commerce clause. “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 judge wrote.

See here and here for the background. The Fifth Circuit never disappoints, do they? Completely predictable, regardless of the facts.

One small bit of potentially good news.

The ruling by the panel of the Fifth Circuit is unlikely to be the final word. Some challenges to the mandate are in other circuits, and the cases will be consolidated before a randomly chosen one of those jurisdictions. The Supreme Court is expected to eventually decide the matter.

Dena Iverson, a Justice Department spokeswoman, said the Biden administration would defend the mandate through that process.

Maybe we can hope for a better outcome from a less corrupted court. In the meantime, I’ll leave you with this:

Further developments soon, we hope. CNBC and Reuters have more.

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6 Responses to Fifth Circuit extends hold on Biden employer vaccine mandate

  1. Kibitzer Curiae says:

    THE FIFTH: “The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.”

    COMMENT: Abbott has issued more than three dozen extraordinary executive orders under the Texas Disaster Act, and the Texas Supreme Court is on number 43rd. The latter are actually titled “emergency” orders. So much for the sophistry regarding the continued state of disaster (“epidemic” in the lingo of the TDA) no longer constituting an emergency. See Forty-Third Emergency Order Regarding The COVID-19 State of Disaster, effective October 1, 2021. Misc. Docket No. 21-9119 (Tex. Sept. 21, 2021)

    FIFTH: “Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size fits-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.”

    COMMENT: Nice example of “reasoning” by blunt-force off-the-wall metaphor. How do sledgehammers “hardly” do anything or not? Are sledgehammers people too?

    THE FIFTH: “Of course, OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.””

    COMMENT: Luckily, we have appellate judges to substitute their own broad-brush assessmens and make up for any deficiencies OSHA may have in on-the-ground hazard determinations.

    THE FIFTH: “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.”

    COMMENT: Almost sounds like they are talking for previously deviant sexual practices and abortion.

  2. Jason Hochman says:

    The assault on worker rights must be stopped. It is common knowledge that your vaccine doesn’t protect others. Everyone who wants to get vaccinated is able to do so. The same for wearing a mask. There is no need to force that on others. Remember, the people trying to force their views on others are the aggressors. As Mom says, misery loves company. The people who just want to live their lives should be left alone.

  3. SocraticGadfly says:

    Agreed, Hochstetter. We need stop businesses from busting union organizatoin and other things.

  4. policywonqueria says:


    Re: “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.”

    If each person gets to do what they want as they see fit, it’s a laissez faire regime. You might say that’s a policy at some level (abstention by government or noninterference), but to describe that as a “public interest” is oxymoronic.

    It would eviscerate the distinction between private interest and public (communal, collective) interest. Just because individuals want to behave a certain way or do certain things doesn’t mean it’s good for the community. If you let your dog shit in the communal area and don’t clean it up, it serves you by keeping the pooch poop and the stink out of your home, and it burdens the entire community of neighbors instead. You have acted selfishly at the expense of others.

    Assuming the quoted passage is a snarky reference to abortion jurisprudence, it’s not even true in that context that private decisions have no public-interest dimension. The incidence of abortion affects the birth rate, for example, and is therefore demographically relevant.

  5. Jason Hochman says:

    policy: I am unable to do the mental gymnastics required to see the comparison of forcing people to take a drug to dog waste removal. Are you suggesting that if we aren’t all forced to take this drug, then society would become a laissez faire regime and collapse with piles of dog droppings everywhere?

    Let me just scrape the delta variant off my shoes.

    The court needs to rule based on The Science. The Science shows that the 19 virus is contracted and spread by the vaccinated. Your vaccine don’t protect me. Plus, the illness is for an overwhelming majority not extremely serious, whether vaccinated or not. The Science shows that there is no need for the failed Biden administration to force this arbitrary nonsense on the working class.

  6. Pingback: Biden tries again on the employer vaccine mandate – Off the Kuff

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