‘No Such Authority’: The Fifth Circuit Has Harsh Words For Biden’s Vaccine Mandate

A Fifth Circuit Court of Appeals ruling has set a formidable precedent for judicial scrutiny of Biden administration policies concerning Covid, as well as constitutional questions in general.

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It was with scorn and constitutional alarm that the Fifth Circuit Court of Appeals on November 12 turned aside the Biden administration’s attempt to require Covid vaccinations for the nation’s workforce. The ruling has set a formidable precedent for judicial scrutiny of Biden administration policies concerning Covid, as well as constitutional questions in general.

In order to avoid the drawn-out and detailed procedures, including public comment, required by executive-branch administrative law, the administration commandeered a rarely used power of the Department of Labor’s Occupational, Safety, and Health Administration (OSHA). Under a regulatory authority unique to itself, OSHA may impose an Emergency Temporary Standard (ETS) on the nation’s workplaces and have it go into effect immediately.

The ETS vaccination mandate OSHA promulgated on November 5 required all private businesses of 100 or more employees in the country to have their workforces vaccinated against Covid or mask and have weekly Covid tests. On September 9, President Biden had imposed a similar vaccination requirement on all federal employees.

In its 50-year history, OSHA has used its ETS emergency powers only on ten occasions, for example, concerning asbestos and benzene. It has never done so to require national immunizations. Also, as the Circuit pointed out, courts overturned five of those past OSHA ETS initiatives.

Individual plaintiffs, employers, and the states of Mississippi, Louisiana, Texas, South Carolina, and Utah filed suit against the OSHA mandate. They asked that the mandate be stayed from going into effect pending the outcome of their suit, which seeks a permanent injunction. The Circuit considered the normal rules of jurisprudence concerning stays and injunctions and issued a stay, holding that the mandate was not “likely to succeed . . . for a multitude of reasons.”

After the loss at the Fifth Circuit, and in light of similar challenges in other federal courts, the Biden administration has suspended the vaccination mandate. Now, in keeping with rules governing multi-circuit litigation, the Sixth Circuit Court of Appeals will take over the Fifth Circuit’s case, BST Holdings, LLC et al. v. OSHA, as well as all other cases nationwide challenging OSHA’s mandate.

OSHA Mandate’s Various Flaws The Biden administration argued that its basic statutory authority together with its special emergency authority allowed it to issue an ETS because Covid had created a “grave danger” to the country by exposing workers to “toxic or physically harmful . . . substances or agents.”

The Fifth Circuit answered that the mandate was “staggeringly overbroad” in that it failed to include, “the most salient fact of all,” that Covid is “more dangerous to some employees than to other employees” (emphasis in original), an example of the latter being employees who work outdoors. At the same time, the mandate was also “underinclusive,” the Circuit ruled, because it fails to protect employees of businesses that employ fewer than 100 employees, which “belies the premise that any of this is truly an emergency.”

In addition, the Circuit said, the mandate failed to consider the “economic consequences to the regulated industry,” quoting its own 1984 decision on OSHA’s ETS powers, in which it stayed OSHA’s attempt via ETS authority to regulate asbestos, determining that it was “invalid.”

Before the vaccination mandate, OSHA had not used its ETS power since losing that case, Asbestos Info. Assn. v. OSHA, which today remains the leading ETS case nationwide. The Circuit concluded that the vaccination mandate “grossly exceeds OSHA’s statutory authority,” and, in creating OSHA, Congress had not intended to create “a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matter of public health affecting every member of society in the profoundest of ways.”

States’ and Individual Rights Additionally, the case exhibits a breezy attitude by the Biden administration to both the nationwide re-organizing of society that would be created by the mandate and to the constitutional role of the states in the country. Not only is OSHA’s mandate unique in content and procedure, it would pre-empt and nullify what are literally hundreds if not thousands of related regulations imposed by cities, counties, and states across the country and that are currently in effect. Not to mention the widespread personal resistance to the mandate that would occur.

In their brief, the five complaining states attempt to preserve their “sovereign interest” to address the pandemic in their own laws, and they make the constitutional argument that the states have the police power under the Constitution. They cite the 1982 unanimous decision of the Supreme Court in Alfred L. Snapp & Son v. Puerto Rico, a case involving workers’ rights and immigration, in which the Circuit upheld state standing in court to sue on behalf of the “health and well being” of their citizens “independent of the benefits that might accrue to any particular individual . . . including under federal statutes.”

Although not issuing a final ruling on the content of the mandate, the Fifth Circuit Court of Appeals could not resist holding forth at length about the status and role of the states in the Constitution. The “Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic activity that falls squarely within the States’ police power.”

The Circuit continued: “A person’s choice to remain unvaccinated and forgo testing is noneconomic inactivity.” And: “The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.”

Quoting the Supreme Court in Bond v. United States, a case involving a conflict between the Tenth Amendment and a federal law implementing an international treaty: “The States have broad authority to enact legislation for the public good—what we have often called a ‘police power.’ . . . The Federal Government, by contrast, has no such authority.” The brief of the Biden administration made no mention of the police power of the states.

Executive Overreach On the allegation of the petitioners that OSHA has acted outside of its powers delegated by Congress, the Biden brief quoted the recent statement by the Supreme Court in its Gundy v. U.S. decision in 2019 that “only twice in this country’s history” has the Supreme Court “found a delegation [of the legislative power] excessive.” The two cases the Gundy court was referring to were the decisions of the Supreme Court in the Schechter Poultry (1935) and Panama Refining (1935), rulings that overturned the delegation of the legislative power to the president and temporarily delayed the New Deal.

Today, there are numerous indications that we are at a similar and historic turning point. Indeed, Senate Majority Leader Chuck Schumer of New York referred to the Covid stimulus legislation passed in the spring as a New Deal measure. White House Chief of Staff Ronald Klain just said Biden’s spending goals are “twice as big, in real dollars, as the New Deal.”

In its decision, the Fifth Circuit emphasized the delegation issue, saying: “The Constitution vests a limited legislative power in Congress” and “The nondelegation doctrine constrains Congress’ ability to delegate its legislative authority to executive agencies.” So, how will the federal appeals courts and ultimately the Supreme Court rule on the coming question of whether there are any limits at all to what powers Congress may delegate to the executive branch?

An apt comparison can be made to the 1952 Supreme Court case Youngstown Sheet & Tube v. Sawyer, in which the Court ruled that President Truman’s seizure of the steel mills in order to prevent a workplace strike during the Korean War — the pandemic of that time — was an unconstitutional seizure of private property.

Since retiring as an Assistant U.S. Attorney, Thomas R. Ascik has written about legal and constitutional issues on a variety of websites including The Federalist, The Imaginative Conservative, and Law & Liberty.

With this ruling, and the soon to be SCOTUS ruling, you will be in position for civil rights law suit.

You and many others.

No in today’s world. Employers are upping starting wages to actually higher than existing employees. In addition they are not trained. Employer loses and in this case deserves it.

I guess the best way to circumvent an uncooperative court is to go ahead and declare martial law based on the national emergency called “plandemic.”

No, I don’t put it past Stalin Jr.

I am sorry to hear about your situation.
It sounds like you are working for a terrible company.

Maybe you should consider seeking employment elsewhere.

Te companies are acting on their own becasue there is no lawsuit liability. Risk averse means they can do want they want without consequence. The only way to stop the company mandates is 1. A bunch of CEO’s croak from adverse effects or the states impose strict penalties for adverse effects due to their mandates.

...we just found out that they will be outsourcing large amounts of staff in the spring, so this is probably a cheap means to reduce staff to ramp up to that...

Your company's HR tightened their sphincters with the Fifth Circuit's ruling.

A lawyer said recently that the lawsuits are going to make the tobacco settlement look like small claims court.

I will lose my job on Jan 5th if I don’t get jabbed

My daughter works for CVS. She has been with them 20+years and works exclusively from her little office at home. The first wave of their mandate she got a religious exemption. Now word has come down that everyone must be "vaccinated" by April 1, no exemptions, no exceptions.

Changing jobs will mean a huge cut in pay, most likely. I am sick with worry, as I know you certainly are. I'll say a prayer for you too when I pray about our situation.

I don't mind saying that CVS has gone full nazi. My daughter got a religious exemption in Oct. Now word has come down that all employees will be vaccinated by April 1. I'm sick with worry. Her job is pretty specialized and not something she can just happen to find somewhere else, unless it's a large company that likely also has a mandate.

Ranting. Right now ranting feels good. :(

>>> A lawyer said recently that the lawsuits are going to make the tobacco settlement look like small claims court.

yeah... what really bothers me though is that the upcoming legal storm was anticipated, if not designed, as an integral part of bringing down our economy.

Not only are they dividing the people, but they are dividing the employers as well.

Convenient how the employers will be the only ones left holding the bag of consequences when the horrible truth comes out.

“ When the case gets to SCOTUS, Roberts will deem the mandate to be a tax on the unvaxxed.”

It would be more funny if not so likely!!!

Friend got covid shot and then had blood clots that went to his lungs. They have a small business. I asked his brother, privately, if he had taken then shot. Brother went ballistic accusing anyone who asked of passing on “conspiracy theories” and using his brothers sickness to further them.

Well guess what? I later find out that brother mandated all employees get the jab. He has no guilt because he has no self awareness. narcissist would be a perfect description.

Those harmed by the jab should sue the Hell out of any employer who mandates it.

>>> Those harmed by the jab should sue the Hell out of any employer who mandates it.

I wholeheartedly agree!

Not sure what your financial situation is but I lost my job on 11/30. There’s definitely a tightening of belts as we temporarily adjust to my husband’s income only. I filed for unemployment as I’ve got a 50-50 chance in PA of getting it. No matter what, my next job is going to be hourly retail or food service most likely, rather than the IT job I’ve been doing for the last 30 years.

The good news is that for the last two days my spirit has been lighter and happier than it’s been in years, and I’m sleeping better as well. CVS (my employer for the last 10+v years) will get what’s coming to them for being complicit in the vaccine push as well as the big pharma mess in general.

Back in the eighties Indiana Bell RIFFED a large number of linemen and service techs, almost exclusively white men in the 30-50 age group. About 6 months later they started hiring new field techs with fancier names almost all Blacks and women.

Executive Overreach On the allegation of the petitioners that OSHA has acted outside of its powers delegated by Congress, the Biden brief quoted the recent statement by the Supreme Court in its Gundy v. U.S. decision in 2019 that “only twice in this country’s history” has the Supreme Court “found a delegation [of the legislative power] excessive.”

That's an extremely poor argument. It's not that Congress can or can't delegate these powers to the executive, or if Congress even has the power to delegate, it's that Congress NEVER DID DELEGATE this power to OSHA. There was NO POWER given to OSHA for them to abuse here. There was nothing delegated for them to argue whether it was proper or not!

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