The Sixth Circuit Court of Appeals ruled to allow the Biden administration’s COVID-19 vaccine mandate for private companies with more than 100 employees to remain in place, dissolving a ruling from the Fifth Circuit which had placed a temporary hold on the controversial policy last month.
In early November, President Joe Biden and his administration finalized the mandate, which was issued as an Emergency Temporary Standard (ETS) by the Department of Labor’s Occupational Safety and Health Administration (OSHA).
It was promptly met with several lawsuits, including conservative groups and companies like the American Family Association and The Daily Wire, as well as several states, including Texas, Utah and Mississippi.
The basis of challenges to the OSHA mandate was that it exceeded the authority granted the agency by Congress, but the Sixth Circuit’s majority disagreed.
“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons wrote late Friday night when the court issued its 2-1 decision.
“Indeed, no virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers. And courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in society but are at heightened risk in the workplace,” the President Ronald Reagan-appointed judge stated.
“Recognizing that the ‘old normal’ is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there,” Judge Jane Branstetter Stranch, a Barack Obama appointee, wrote for the majority, as reported by The Daily Wire. “In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration.”
This choice of words is telling. The “old normal,” it seems, is gone for good, and we are officially entering a brave new world of expanded government authority.
The Sixth Circuit’s decision dissolved a stay issued by the Fifth Circuit Court from last month.
“Before the court is the petitioners’ emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) pending expedited judicial review,” the appellant court had written.
“Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”
The Sixth Circuit criticized the Fifth Circuit’s decision on Friday, writing:
In reaching its decision to stay the ETS, the Fifth Circuit generally forecasted that the ETS faced fatal statutory and constitutional issues, then concluded that the Petitioners had demonstrated a strong likelihood of success on the merits. … the Fifth Circuit found that individuals, states, and employers would be “substantially burdened” due to the compliance costs, loss of constitutional freedom, and intrusion into States’ “constitutionally reserved police power.” … Without addressing any of OSHA’s factual explanations or its supporting scientific evidence concerning harm, the Fifth Circuit summarily concluded that “a stay will do OSHA no harm whatsoever” and “a stay is firmly in the public interest.”
Journalist Shannon Bream on Twitter wrote that it was rather unusual circumstances that enabled the Sixth Circuit to overrule the decision previously reached by the Fifth:
Several asked how 6th outweighs 5th here. It’s a unique situation in which 6th won a lottery to oversee all the pending challenges to the OSHA mandate. Trying to confirm there’s an emergency petition already filed (or about to be) at SCOTUS for a temporary stay. Stay tuned!
— Shannon Bream (@ShannonBream) December 18, 2021
The dissenting vote on Friday came from Judge Joan Larsen, an appointee of President Donald Trump, who predicted that the petitioners were still likely to succeed in their challenge to the mandate based on the reasoning that the mandate was outside of OSHA’s authority.
“As the Supreme Court has very recently reminded us, ‘our system does not permit agencies to act unlawfully even in pursuit of desirable ends.’ Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021). The majority’s theme is that questions of health science and policy lie beyond the judicial ken. I agree,” she wrote.
“But this case asks a legal question: whether Congress authorized the action the agency took. That question is the bread and butter of federal courts. And this case can be resolved using ordinary tools of statutory interpretation and bedrock principles of administrative law. These tell us that petitioners are likely to succeed on the merits, so I would stay OSHA’s emergency rule pending final review.”
On the heels of the Fifth Circuit decision, over two dozen businesses filed an appeal with the U.S. Supreme Court, asking it to block the mandate, Politico reported.
“It will impose substantial, nonrecoverable compliance costs on those businesses. Those businesses will be faced with either incurring the costs of testing for the millions of employees who refuse to be vaccinated—and passing those costs on to consumers in the form of yet higher prices at a time of record inflation—or imposing the costs of testing upon their unvaccinated employees, who will quit en masse rather than suffer additional testing costs each week,” the appeal reads.
Under the OSHA rule, companies face fines of up to $13,600 per violation plus an additional $13,600 for each day that employees remain unvaccinated and fines up to $136,000 for willful or serious violations.
In their lawsuit against the Biden administration, The Daily Wire noted that, as an employer, it is simply not their job to enforce the federal government’s vaccine mandates.
“We’re not the enforcement arm of the federal government,” the conservative media company’s co-CEO Jeremy Boreing wrote at the time.
“Forcing Americans to choose between their livelihoods and their freedom is a grotesque abuse of power and we won’t be a party to it,” he also said. “We will not incur the cost of implementing this testing regime. We will not incur the liability of inserting ourselves into the private health decisions and information of our employees. Our company was founded to stand against tyranny, and we will.”
The COVID-19 pandemic has paved the way for unprecedented expansion of government power. From the moment they first told us to shut down our businesses, pull our kids out of school, cancel our family gatherings and sheath our faces in public, despite dubious evidence that such a practice would even be effective at preventing the spread of the virus, we have been whizzing down a very slippery slope.
In Europe, the pandemic has paved the way for two-tiered societies to emerge in countries like Germany and Austria, where less than a century ago, separating citizens based on their standing with the government led to some of the most horrific examples of tyranny the world has ever seen.
It wasn’t long ago that, here in the United States, those deemed unfit to reproduce by governing bodies were forcibly sterilized.
These oh-so-recent examples of government overreach and medical tyranny in the modern, western world were being conducted in the name of progress and the greater good, make no mistake.
Tyrants always have a supposedly good reason why they need to take more control over your life, to subject you to their supposedly infallible “science,” and engineer humanity according to their supposedly virtuous aims.
You’ve heard the one about how to cook a frog, right? If you slowly increase the temperature of the water, the unwitting little amphibian never has any idea he’s heading slowly toward his demise until it is far too late.
What you’re being told is a perfectly lawful, sensible measure to further stop the spread of a disease has been used as an excuse to bring back fascism to Europe and turn American cities into microcosm “papers, please” societies. This is most certainly much, much more than “just” a vaccine mandate.
It’s a critical step towards an illiberal future that we might never be able to find our way out of if we allow this to continue.
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