The 5th Circuit’s brilliant opinion staying OSHA’s vaccine mandate By Andrea Widburg
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.)
To meet the legal requirements, OSHA would have had to act with incredible speed to issue a narrowly crafted mandate drilling into the places with the highest risk. (Perhaps targeting the New York subways or American meatpacking plants in Spring 2020.) Instead, notes the court, the mandate came almost two years into the virus’s depredations and almost two long months after the president declared there was an emergency requiring a mandate. Moreover,
[R]ather 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. (p. 8.)
In another gem of a paragraph, the Court describes the mandate as “fatally flawed on its own terms.” Thus,
[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). (p. 6.)
And of course, there’s Chief of Staff Klain’s retweet which the Court suggests is an admission that using OSHA was a deliberate attempt to circumvent the President’s constitutional inability to issue such a mandate.
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The Court touches upon a few other things, including the fact that COVID’s risks are very uneven, depending on a person’s age, general health, and immunity; and OSHA’s past statements about its lack of power to make mandates for infectious diseases.
The Court also notes a couple of serious constitutional problems. While states have vast powers over public health, the Commerce Clause means that the federal government does not: “A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity,” and therefore within the states’, not the federal government’s, purview. Likewise, Separation of Powers principles mean that an agency operating under the Executive cannot exceed the narrow mandate Congress gave it.
With regard to this last point, the Court gave a nod to the Supreme Court’s decision earlier this year holding that the CDC may not make housing policy by issuing eviction moratoriums. It noted that Congress can only give away so much of its authority, for “health agencies do not make housing policy, and occupational safety administrations do not make health policy.” (p. 20.)
There’s much more in the opinion and it’s written almost entirely in intelligible English so I suggest you may enjoy reading it yourself.
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