Here Are the Arguments That Persuaded the 5th Circuit To Block OSHA’s Vaccine Mandate for Private Employers

The U.S. Court of Appeals for the 5th Circuit yesterday stayed the Biden administration’s brand-new COVID-19 vaccine mandate for private employers, which took effect on Friday, when it was published in the Federal Register. The appeals court said the arguments made by the petitioners—a Louisiana supermarket chain and six employees of a Texas company that makes kitchen ventilation systems—”give cause to believe there are grave statutory and constitutional issues with the Mandate.”

The vaccine rule, which was announced in early September but was not unveiled until last Thursday, gives businesses with 100 or more employees two options: They can adopt a “mandatory vaccination policy” with limited exceptions, or they can require unvaccinated employees to wear face masks and undergo weekly COVID-19 testing. The White House described the mandate as part of a broader effort to boost the nationwide vaccination rate. The aim, it said, is to “reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements.”

But the federal government has no general authority to protect public health, control communicable diseases, or require vaccination, all of which are primarily state responsibilities. The administration therefore presented the vaccine mandate as an “emergency temporary standard” (ETS) issued by the Occupational Safety and Health Administration (OSHA), which is charged specifically with protecting employees from workplace hazards. As the 5th Circuit indicated, that legal strategy leaves the mandate open to challenge on both statutory and constitutional grounds.

The plaintiffs in BST Holdings v. OSHA, who are represented by the Chicago-based Liberty Justice Center and Louisiana’s Pelican Institute for Public Policy, argue that the ETS exceeds the agency’s authority under the Occupational Safety and Health Act. Even if it didn’t, they say, empowering OSHA to issue such a sweeping order would exceed the federal government’s power to regulate interstate commerce and violate the nondelegation doctrine, which constrains lawmaking by executive agencies.

Click here to read the full article at Reason.com

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