https://www.wsj.com/articles/the-supreme-courts-covid-vaccine-test-sixth-circuit-osha-mandate-11640034808?mod=opinion_lead_pos1
Justice Antonin Scalia famously wrote that Congress doesn’t hide elephants in mouseholes. But that’s essentially what a Sixth Circuit Court of Appeals majority said Congress did late Friday when they lifted a stay on the Occupational Safety and Health Administration’s vaccinate mandate.
The Fifth Circuit Court of Appeals last month stayed OSHA’s “emergency temporary standard” after finding the agency exceeded its legal authority by requiring that employees of private employers with 100 or more workers be vaccinated or tested weekly. The Biden Administration appealed to the Sixth Circuit, where numerous other lawsuits were consolidated.
Judges Julia Smith Gibbons and Jane Branstetter Stranch rescued the mandate by deferring to the Administration. They say Congress gave OSHA the power to issue emergency orders to protect workers from “grave dangers.” The Labor Secretary merely must find “that employees are exposed to grave danger from exposure to substances or agents” that are toxic or physically harmful and that an “emergency standard is necessary to protect employees from such danger.”
Covid meets the dictionary definition of an “agent,” the majority says, ergo OSHA can issue its mandate. The majority also says new variants support OSHA’s determination that Covid still poses a grave danger, and it is not “appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.”
But the question the judges are asked to decide isn’t whether Covid is a grave danger, as Judge Joan Larsen explains in her potent dissent. The question is whether OSHA acted within the law as written by Congress. It certainly didn’t as we read the law.