https://www.americanthinker.com/blog/2021/11/the_5th_circuits_brilliant_opinion_staying_oshas_vaccine_mandate.html
Despite (or perhaps because of) a long career spent reading judicial decisions, I really hate reading cases. A stellar exception arose on Friday, when the Fifth Circuit issued its decision in BST Holdings, L.L.C. et al. v. OSHA, reaffirming the initial stay it granted when multiple entities and individuals challenged OSHA’s recently issued vaccine mandate. In one brutal paragraph after another, the Court rips apart the mandate, citing law, facts, OSHA precedent, and even a Ron Klain tweet. It’s a tour de force that makes it unlikely that any halfway honest court can or would resuscitate the mandate or that either OSHA or even Congress could try again.
There are a few dates you should know: In June 2020, when fear about COVID was at a peak, OSHA “reasonably determined” that an emergency temporary standard (“ETS”) was unnecessary. Over a year later, on September 9, 2021, Biden announced that he was going to impose a national vaccine mandate. That same day, Ron Klain retweeted a Stephanie Ruhle tweet stating that the vaccine “is the ultimate work-around for the Federal govt to require vaccinations.” Finally, almost two months later, on November 5, OSHA finally got around to promulgating the ETS.
And there are two facts you need to know: Congress created OSHA
[T]o assure Americans ‘safe and healthful working conditions and to preserve our human resources.’ … It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways. [p. 6, citations and footnote omitted.]
OSHA’s authority regarding issuing an ETS is also extremely narrow, requiring a grave danger from exposure to hazardous substances, toxic agents, or new hazards, all of which require urgent intervention. ETSs are “‘an ‘unusual response’ to ‘exceptional circumstances.’” (p. 8, citations omitted.) The legal standard is that this “extraordinary power” must be “delicately exercised” and only in “limited situations.” (Ibid.)