No Shots Fired: Biden Loses Emergency Mandate Duel

November 15, 2021

Unvaccinated employees in several states can mark themselves safe, for now, from OSHA's career-ending vaccine mandate after a three-judge panel of the 5th Circuit Court of Appeals put the rule on ice Friday. The panel issued a stay on November 5 pending an expedited judicial review, and have now reaffirmed that stay in a 22-page opinion. Their emergency ruling excoriates the Emergency Temporary Standard (ETS) so completely that the reader is almost -- almost -- embarrassed for the Biden administration.

While executive agencies usually enjoy deference from courts, the judges asserted this was "not a case where any amount of deference would make a bit of difference." For starters, OSHA broke it own rules. "OSHA is required to make findings of exposure -- or at least the presence of COVID-19 -- in all covered workplaces," something the agency hasn't done and can't do. "The Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one," the judges noted. "Agencies must typically provide a 'detailed explanation' for contradicting a prior policy," or else the reversal is considered "arbitrary and capricious."

The court ridiculed the use of an "emergency" provision for a virus "that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to." In particular, OSHA's statutory authority to issue an ETS is "an 'extraordinary power' that is to be 'delicately exercised' in only certain 'limited situations.' ... 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)." It's difficult to make a rule so poor that a court will find it "both overinclusive ... and underinclusive."

Although 78 percent of Americans aged 12 and older are now vaccinated, the Biden administration decided to mandate it for the rest of the population, even though it had previously conceded it lacked such authority. Nevertheless, "the Administration pored over the U.S. Code in search of authority, or a 'work-around,' for imposing a national vaccine mandate." To this end, it derived "authority from an old statute employed in a novel manner." That's not how rulemaking is supposed to work, the court explained. "Nor can the Article II executive breathe new power into OSHA's authority -- no matter how thin patience wears." Amid the rule's countless absurdities, said the court, "one constant remains -- the Mandate fails almost completely to address, or even respond to, much of this reality and common sense."

"Fatally flawed on its own terms," the OSHA mandate would harm workers, state governments, and private employers. "From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months," argued the court. The rule "flunks a cost-benefit analysis," invents new powers out of thin air and doesn't even try to explain itself. "Such shortcomings are all hallmarks of unlawful agency actions," so the court found that challenges to the rule were "likely to succeed on the merits."

Unfortunately, space prohibits a complete recitation of this sensible, encouraging ruling. But one thing is clear: no matter how ruthless the media's scorched-earth disinformation campaign, they can't make nonsense hold up in court. Every American can read this opinion and be encouraged. Despite the gaslighting of public health officials and irresponsible media outlets, you aren't crazy after all.

This is only the first salvo of the legal battle over vaccine mandates, but so far it looks promising for the forces of freedom.