Posted on 11/13/2021 3:46:00 AM PST by MtnClimber
In a decision written with rare clarity, an exceptional grasp of facts, and the cool, rational application of law, the 5th Circuit completely destroys the mandate.
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.
(Excerpt) Read more at americanthinker.com ...
If the workplace mandate is enforced long enough, it’s eventual overturn would be moot, as the damage would already be done.
Ten states have have filed suit against the CMS lawsuits so far, but as of yet there has been no ruling. I want to find the suit and read it today.
Now is the time for all of us to be very vocal about this.
Don’t give them any ideas.
Heres a link to the lawsuit. I’m from Ohio and of course they have not signed on to this.
https://ago.mo.gov/docs/default-source/press-releases/doc-1-—complaint-cms.pdf?sfvrsn=7953e41b_2
1. What they really want is legal immunity against workplace lawsuits arising out of COVID or any related measures imposed over the last year and a half -- protection from lawsuits by employees who contract the disease, lawsuits by employees who are vaccinated under employer rules and have adverse side effects, etc.
2. These CEOs are never going to get that -- for a number of reasons. The biggest one is that tort lawsuits are covered under state law, not Federal law ... so there will ultimately be a patchwork of 50 different state laws that would cover this. Also, Congress would never pass it as long as Democrats have any say in the matter because they are owned by trial lawyer lobbyists.
3. So what the CEO wants is the next best thing: a Federal "mandate" or "regulation" that covers the employer's ass if there ARE legal ramifications to any COVID policy adopted by the employer.
4. I honestly don't think most CEOs really want a vaccine mandate. I suspect most CEOs don't give a damn if any given employee is vaccinated, not vaccinated, "immunized" by some witch doctor who gives exotic potions, etc. What the CEO really wants is to get a single uniform standard in place that covers the company's ass and eliminates COVID as a distraction. What this means it that there are effectively two options: (A) "vaccinate" everyone, or (B) eliminate almost every COVID-related measure entirely.
5. Most CEOs of large U.S. companies choose Option (A) for one simple reason: At least 75% of their employees are neurotic, gullible cowards who accept whatever idiocy is peddled on social media and buy into the Branch Covidian nonsense ... and who don't want to work with people who refuse to comply. If 75% of the workers in the U.S. refused to get "vaccinated," the CEOs would be fighting this OSHA bullsh!t much harder.
I’m from TN that has also yet to sue over CMS, but a state is a state. Now is not a time for moping. *Everyone* against this action should call their governor’s and AGs to impress upon them how important this is to take a stand. Especially those in blue states. I did some calling yesterday to blue team politicians and the staffers sounded shell-shocked to me, like they were being bombarded by complaints.
In the meanwhile, damn them all!
——What they really want is legal immunity against workplace lawsuits-—
That is the heart of the matter. Any damned ambulance chasing son of a bitch with a law degree can claim his client got covid at work and then extort a settlement
Absent a ruling outlawing such meritless suits, there must be open season on Covid lawyers. They are American enemies and must be eradicated down to the last judge
I’ve done the same and I totally agree.
Whether the CMS mandate is a good idea or not really has nothing to do with the issue. As one of the parties of a contract for Medicare/Medicaid services, Uncle Sam can pretty much impose whatever terms they want under new and/or extended contracts.
What people need to realize is that Ron Klain is Pseudo President! Obama had Valerie Jarrett to run the White Hut with an iron fist with the purpose to destroy the Republic. Joe has Ron Klain… Ron has the worst job in America! He has to control Joe Biden and portray to the entire world that Joe is in charge! Joe is not in charge. Every time Joe goes on the stage he is a disaster. This vaccine mandate has exposed Pseudo President Klain. The alternative media needs to corner Klain and get his statement on why he, not Joe, worked with OSHA to try and destroy the country with these unlawful mandates.
We 100% know that the alleged vaccination shots do not prevent Covid. The whole argument falls apart and is becoming more and more obvious by the day with all these vaccinated people contracting Covid. The forms that everyone is signing to get the clot shot states without any ambiguity that it may not prevent Covid! We now know that they do not prevent Covid. So it is time for the CEOs to open their eyes and see how they are being hood winked.
They are already doing that. That is why they published a proposed rule to mandate employers with less than 100 employees to require the vax. However, that rule must go through the proper order for at least 30 days of public comments. Standby for that proposed rule to be brought up by the DOJ as a reason to allow the ETS to be allowed to go into effect. However, an ETS can not be used as a gateway for a permanent rule.
https://www.advisory.com/daily-briefing/2021/11/12/cms-lawsuit
The CMS mandate is also under legal challenge. My local hospital is on the verge of terminating or having 16% of its workforce leave over the mandate. The denizens of the O suite look at it as an opportunity to downsize and redesign operations. Demonrats see the looming mandate as a crisis that will need to be solved thru nationalizing hospitals.
From the Fifth Circuit opinion:
“There is no clear expression of congressional intent in § 655(c) to convey OSHA such broad authority [to issue the Mandate], and this court will not infer one. Nor can the Article II executive breathe new power into OSHA’s authority—no matter how thin patience wears.”
Direct shot at Crazy Joe!
The problem is there are multiple lawsuits in other Federal Circuit Courts. The usual procedure is to combine the lawsuits and randomly select one Circuit Court to rule on the lawsuits. I’m guessing the 9th Circuit will probably be ‘randomly’ picked and after giving the matter deep thought will dismiss the suits.
The companies that go ahead with the mandate are in legal jeopardy if the federal mandate is knocked down in court. Lots of wrongful termination suits and suits for any damage caused to individuals who were forced to take the vaccine.
Won’t be my company. All of its assets are in the south where we don’t play reindeer games like this.
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