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January 25, 2022

11/12/2021 4:27:00 PM
Judge issues temporary stay of Biden vaccine mandate
Case likely headed to Supreme Court as Biden targets small businesses next
Richard Moore
Investigative Reporter

As expected, the Biden administration's issuance last week of a vaccine mandate for larger employers has provoked an immediate spate of lawsuits, including one from two businesses in Wisconsin and one led by the state of Texas that resulted in a three-judge federal appeals panel issuing an emergency stay against it.

The stay is temporary, though, likely to be swiftly resolved, and the Biden administration said it would defend the rule - which is actually an emergency temporary standard (ETS) - in court. In any event, the legality and constitutionality of the mandate will likely be decided in the Supreme Court, sooner if the appeals court issues a permanent injunction, which would allow OSHA, the occupational health and safety agency that fashioned the rule, to appeal to the Supreme Court, or later, if the injunction (and others that might be issued) is lifted, the mandates take effect, and the challenges wind through the normal appeals process.

To be sure, it might not be the only emergency stay coming down the pike. Other just-filed lawsuits are asking for the same thing, including one by the Wisconsin Institute for Law & Liberty, which has sued in the seventh circuit court of appeals on behalf of Tankcraft Corporation and Plasticraft Corporation, two manufacturers in Darien.

At their heart, all the lawsuits are contesting the administration's authority to unilaterally impose a compulsory vaccine mandate on tens of millions of Americans. Some of the lawsuits say the mandate is an illegal legislative act by the executive branch without congressional approval, while others claim the constitution reserves police powers, such as the power to command compulsory vaccination, to the states and not the federal government.

Others contend, among other things, that OSHA exceeded its authority because its parameters for an emergency standard are limited to protecting workers from urgent "grave dangers" arising from conditions in the workplace and that the agency should not be allowed to shoehorn broad public health concerns into that category.

Still others say the agency is leaping beyond its workplace jurisdiction by applying the mandate to contractors.

While the temporary injunction might end up being the equivalent of a five-yard penalty that won't hold the rule back, it does represent legal headwinds for the administration, with the court citing potential "grave statutory and constitutional issues" with the proposed standard.

Political headwinds were blowing last week, too. While some pointed out that the fifth circuit court of appeals is one of the most conservative in the nation, some elected Democrats began to say the mandate was a step too far, including Kansas's Democratic governor, Laura Kelly.

"Yesterday, I reviewed the new vaccine mandate from the Biden administration," she said on November 5. "While I appreciate the intention to keep people safe, a goal I share, I don't believe this directive is the correct, or the most effective, solution for Kansas."

Kelly said states have been leading the fight against Covid-19 from the start of the pandemic.

"It is too late to impose a federal standard now that we have already developed systems and strategies that are tailored for our specific needs," she said. "I will seek a resolution that continues to recognize the uniqueness of our state and builds on our on-going efforts to combat a once-in-a-century crisis."

Previous critics were emboldened even more by what they called punitive measures buried in the 490-page rule. For example, the rule allows employees to avoid vaccination by getting tested weekly, but the ETS does not require employers to pay for the testing. Some states may require employers to do so, and some workers could be covered by union contracts, but generally employers are free to pass the costs along to workers.

In addition, the ETS requires employers to mandate masking for all employees not fully vaccinated when they are indoors or in a vehicle with another person for work purposes.

While the vaccination-or-testing requirement begins January 4, 2022, under the rule the masking requirement for unvaccinated workers begins December 5.

The ETS also signaled that OSHA likely plans to expand the scope of the rule to include all small businesses.

"... OSHA has implemented a 100-employee threshold for the requirements of this standard to focus the ETS on companies that OSHA is confident will have sufficient administrative systems in place to comply quickly with the ETS," the final interim rule states in the Federal Register. "The agency is moving in a stepwise fashion on the short timeline necessitated by the danger presented by Covid-19 while soliciting stakeholder comment and additional information to determine whether to adjust the scope of the ETS to address smaller employers in the future. OSHA seeks information about the ability of employers with fewer than 100 employees to implement Covid-19 vaccination and/or testing programs."



The Texas complaint

In filing the Texas challenge, state attorney general Ken Paxton called the vaccine mandate unconstitutional and illegal.

"The Biden administration's new vaccine mandate on private businesses is a breathtaking abuse of federal power," Paxton said. "OSHA has only limited power and specific responsibilities. This latest move goes way outside those bounds. This 'standard' is flatly unconstitutional. Bottom line: Biden's new mandate is bad policy and bad law, and I'm asking the court to strike it down." 

In the petition for review, the state and other petitioners allege that countless Texans and other Americans are being forced to choose between their livelihoods and their fundamental constitutional rights.

"The state of Texas and its officials have sought to protect individual rights while also encouraging and promoting effective public health techniques to combat the spread of Covid-19," the petition states. "The federal government, however, has launched a coordinated effort to decide for itself whether and when Americans must receive the vaccine, regardless of individual preference, health-care needs, or religious beliefs."

In fact, the petitioners argued, the U.S. constitution provides for a federal government of limited powers, and it does not and has never had a general police power that would give it the right to dictate any and every facet of its citizens' lives.

"But defendants have no regard for the limits that the constitution and federal statutes impose upon them," the petition states. "Defendants' actions are nothing short of a dramatic infringement upon individual liberties, principles of federalism and separation of powers, and the rule of law."

Even worse, petitioners argued, the federal government's "cowardice" had led it to have federal contractors do their dirty work.

"Rather than impose a vaccine mandate directly, defendants are coercing federal contractors into demanding that the millions of Americans they employ get vaccinated or lose their jobs," the petition states. "Defendants also require contractors to dictate the lives of not only those performing work connected to federal contracts, but also those employees who may not perform any federal work at all. Simply due to the misfortune of working for a company that may have a federal contract, an American may be forced to receive a vaccine they do not want or else lose their job."

The federal government's overreach must come to an end, petitioners urged.

"Defendants are using subterfuge to accomplish what they cannot achieve directly - universal compliance with their vaccine mandates, regardless of individual preferences, health-care needs, or religious beliefs," the petition states. "And defendants effectively claim for themselves a general police power to control American life, infringing on states' sovereignty and usurping the powers reserved to the states under the constitution."

Indeed, they argued, Biden himself expressed little tolerance for those who do not share his views, as evidenced by his announcement that his "patience was wearing thin" with Americans who chose not to receive the vaccine.

"The president has further singled out Texas as an enemy because of its stance in favor of individual liberty," the petition continued. "Speaking about Texas Gov. Greg Abbott, President Biden threatened that '[i]f they'll not help - if these governors won't help us beat the pandemic, I'll use my power as President to get them out of the way.' And yet, then-President-elect Biden previously vowed not to demand any mandatory vaccinations."

Through a conflicting, vague, and confusing web of executive orders, task force directives, and contract requirements, the petitioners wrote, defendants had made it clear that they would accept nothing less than complete obedience and compliance with their vision for how to fight Covid-19.

"Defendants apparently have no concern for the disastrous potential effects of defendants' coercive tactics on the economy or the erosion of Americans' liberties," the petition states. "Even one American being forced by their government to receive a vaccine that they do not want out of fear of losing their job is an irreparable injury and a stain on defendants' records. But the broader implications of these unlawful vaccine mandates, if they are not stopped, portend a dark future for the economy and the American way of life."

Among other things, the lawsuit complains that the mandate violates the nation's Procurement Act, is an arbitrary and capricious agency action, and is an unconstitutional delegation of legislative power.

The petition asserts that only Congress can engage in lawmaking, and the nondelegation doctrine, which is based on the principle of preserving the separation of powers, bars Congress from transferring its legislative power to another branch of government. According to the petition, Biden's "intrusive and sweeping mandate" lacks the requisite congressional direction to support such a broad delegation of power.

"Without explicit congressional authorization, the president's delegation of power in the executive order and through the OMB Determination and the Task Force is an unconstitutional delegation of legislative authority which cannot survive constitutional scrutiny," the petition asserts.



The Wisconsin challenge

In filing an emergency motion for a stay, WILL president and general counsel Rick Esenberg echoed Paxton in calling the rule illegal and unconstitutional.

"It circumvents the normal legal process, along with Congress, to claim emergency powers to impose a mandate on American business," Esenberg said. "However you feel about the Covid vaccine or even the very different question of a vaccine mandate, the Biden administration is claiming an extraordinary power to rule by decree that could be used in the future in almost unlimited and unforeseeable ways."

Steve Fettig, the secretary and treasurer of Tankcraft and Plasticraft, called the order unconscionable.

"OSHA does not know how to run our companies," Fettig said. "We do. OSHA does not know how to keep our employees safe. We do. And we have done so successfully since the start of the pandemic without the interference of a federal bureaucracy. We respect our employees' fundamental right to make their own private, difficult medical choices."

In the emergency motion for a stay, WILL argues that the rule doesn't come close to passing legal muster.

"While vaccination may be the right thing to do for some, this type of federal management of personal health-care decisions, even if permissible in the abstract, must be lawful in its execution," the motion states. "This extraordinary diktat does not come close."

In the face of the mandate, WILL said its clients had to decide between two impossible choices.

"[I]f they impose OSHA's mandate, they will lose employees who do not wish to be vaccinated or tested weekly and precious days of productivity due to testing, vaccinations, and vaccine side effects," the motion states. "But if petitioners fail to comply, they will face staggering fines from OSHA."

That harm is being imposed solely by presidential decree, WILL argued.

"There hasn't been any process allowing public comment on the rule," the motion states. "In fact, the text of the rule was not even publicly available until today, and it goes into effect tomorrow."

What's more, the motion continued, the rule places upon employers not simply the obligation to make their workplaces safe, but it deputizes employers into acting as agents of an unprecedented federal public health program.

"While the relevant law grants OSHA the power to impose emergency standards for workplace safety without public comment if these standards are 'necessary' to address what OSHA believes is a 'grave danger,' this surely goes well beyond what Congress intended," WILL asserted. "If OSHA can use this authority to force 80 million American workers to vaccinate or test weekly, then it is hard to imagine what OSHA could not order. American businesses could be ordered to monitor and intervene in virtually any employee behavior that might pose a risk to others, whether directly related to the workplace or not."

Considering the serious statutory and constitutional claims at stake, and the immediate and irreparable injuries facing petitioners, OSHA's emergency temporary standard should be put on hold immediately while the court considers the case, the motion urged.

More specifically, the motion says the nation's Administrative Procedures Act aims to reduce "injuries and illnesses arising out of work situations" and directs OSHA to address "occupational safety and health hazards at [ ] places of employment." As such, WILL argues, ETSs may address risks and hazards in the workplace, not in society broadly.

"Here, OSHA seeks to address a worldwide pandemic - a virus found nearly everywhere - with an ETS that ought to be limited to hazards arising from workplace conditions," the motion states. "Were OSHA authorized to label generic and ubiquitous risks, such as Covid, as 'hazards' worthy of regulation under the Act, then there would be no limiting principle to OSHA's powers under the Act."

Influenza and norovirus, for example, are "hazards" in the workplace, as are obesity and other health risks based in part on personal choices, heredity, or behavior, yet OSHA does not set standards requiring vaccination or testing for influenza and norovirus because those are not hazards specific to the workplace, WILL stated.

"OSHA's reading of the Act would grant near unlimited powers by ignoring the phrase 'places of employment' in the definition of standards," WILL argues. "But those important textual elements provide a reasonable limitation to the ETS authority to issue 'necessary' emergency rules."



No grave danger

Then, too, the WILL petition asserts, the ETS does not even address a broadly defined "grave danger."

"In fact, President Biden, in announcing this ETS, stated that 'America is in much better shape than it was seven months ago,' and that 'vaccines provide strong protections,'" the motion states. "Despite these claims, OSHA has issued an over-inclusive ETS that attempts to protect all employees, even those who do not face a 'grave danger.'"

WILL says the OSHA ETS allows the agency to forgo the normal notice and comment period for federal regulations because of the emergency nature of the danger and so it is incumbent upon the agency to define that grave danger.

"It is the reliance on ETS that puts the burden on OSHA to reliably prove why current circumstances require emergency action to bypass the normal process," the motion states.

The bottom line is, WILL states, the application of ETS for the rule has no reasonable limits.

"Federal law provides that OSHA can adopt an Emergency Temporary Standard (ETS) to protect employees from 'exposure to substances,' 'agents,' or 'hazards,'" the motion states. "Adopting the ETS to mitigate a global pandemic allows for a limitless application never intended by Congress."

And finally, WILL contends that a broad reading of OSHA's authority to issue an emergency vaccine-or-test mandate raises constitutional concerns.

"Congress cannot delegate its legislative power to executive branch agencies," WILL asserts. "And when OSHA was created, Congress did not provide OSHA with the sweeping authority to address any 'grave danger' that affects workers or employees. Further, the OSHA mandate supplants state and local officials, violating the Constitution's Commerce Clause."





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