Fifth Circuit Slams Zhou Regime's Mandate
While much of the attention of the nation remains on the Kyle Rittenhouse trial, there is good news from the frontline of the battle against the Covid Regime. The Fifth Circuit Court of Appeals has reaffirmed it’s stay on the Mandate. Such stays are issued when it appears that the petitioners are likely to succeed on the merits of their case. In the 21 page opinion—which you can read here—the Court explains exactly why they think the petitioners will succeed.
What I’ve done below is provide excerpts from the opinion, basically from the introduction to the detailed legal analysis. In this limited selection an overall picture of the reasoning to come is sketched out. I’ve deleted most citations for the sake of readability. I’ve retained the footnotes (sans citations) on one page because they’re substantive to the argument. The rest of the editing should be pretty obvious—pagination.
What’s notable, and gratifying, about this opinion is that to my eyes it is dripping with contempt for this regime and its figurehead who fronts for it. The Court is clearly highly offended at the openly proclaimed intent of the regime to find a “work-around” for, basically, the rule of law as we know it. Seen in this light—as it should be—this case is fundamentally important to the preservation of a free nation under law. It’s for this reason that I want to offer readers an accessible look at the opinion:
On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.
We first consider whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.
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We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to 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.
On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms. Indeed, the 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
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threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.
After the President voiced his displeasure with the country’s vaccination rate in September, the Administration pored over the U.S. Code in search of authority, or a “work-around,”13 for imposing a national
10 As Justice Gorsuch recently observed, society’s interest in slowing the spread of COVID-19 “cannot qualify as [compelling] forever,” for “[i]f human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” ...; see also Fla. Peach Growers, 489 F.2d at 131 (situation ongoing for “last several years . . . fail[ed] to qualify for [OSHA] emergency measures”).
11 The President announced his intention to impose a national vaccine mandate on September 9, 2021. See, e.g., Kevin Liptak & Kaitlan Collins, Biden Announces New Vaccine Mandates that Could Cover 100 Million Americans, CNN (Sept. 9, 2021), (“‘We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,’ Biden said, his tone hardening toward Americans who still refuse to receive a vaccine despite ample evidence of their safety and full approval of one ...”). OSHA issued the Mandate nearly two months later, on November 5, 2021, and the Mandate itself prominently features yet another two-month delay. One could query how an “emergency” could prompt such a “deliberate” response. In similar cases, we’ve held that OSHA’s failure to act promptly “does not conclusively establish that a situation is not an emergency,” but “may be evidence that a situation is not a true emergency.”
13 On September 9, 2021, White House Chief of Staff Ron Klain retweeted MSNBC anchor Stephanie Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”
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vaccine mandate. The vehicle it landed on was an OSHA ETS. The statute empowering OSHA allows OSHA to bypass typical notice-and-comment proceedings for six months by providing “for an emergency temporary standard to take immediate effect upon publication in the Federal Register” if it “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”
As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances.’” Thus, courts have uniformly observed that OSHA’s authority to establish emergency temporary standards ... “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’”
But the Mandate at issue here is anything but a “delicate exercise” of this “extraordinary power.” Quite the opposite, 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) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.
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The Constitution vests a limited legislative power in Congress. For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy. Cf. Ala. Ass’n of Realtors, 141 S. Ct. at 2488–90. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.
For these reasons, the petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration’s “COVID-19 Vaccination and Testing; Emergency
Temporary Standard” remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.
In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.