The mandate to require employers to force employees to take an experimental vaccine, which at best seems to provide protection from severe symptoms for a limited amount of time, was struck down by the 5th Circuit Court of Appeals. The full ruling can be found here.
The Court makes a number of salient observations, basically saying OSHA does not have such power, and the mandate is flawed on its own terms. Below are some short quotations from the ruling.
These are selective quotes to provide you with a gist of the argument. Readers can read the entire finding hyperlinked above. We think it fair to say the Administration gets rebuked rather badly by the Court.
- 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 over-inclusive (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 under-inclusive (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 “grave danger”. The non-delegation doctrine constrains Congress’s ability to delegate its legislative authority to executive agencies. See, e.g., Mistretta v. United States, 488 U.S. 361, 371–72 (1989): “The Constitution provides that ‘[a]ll legislative Powers herein granted shall be vested in a Congress of the United States’ . . . and we have long insisted that ‘the integrity and maintenance of the system of government ordered by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch.”
- 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
- But the Mandate at issue here is anything but a “delicate exercise”of this “extraordinary power.” Cf. Pub. Citizen, 702 F.2d at 1155. 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.
- Equally problematic, however, is that it remains unclear that COVID 19—however tragic and devastating the pandemic has been—poses the kind of grave danger § 655(c)(1) contemplates. See, e.g., Int’ Chem. Workers, 830 F.2d at 371 (noting that OSHA itself once concluded “that to be a ‘gravedanger,’ it is not sufficient that a chemical, such as cadmium, can cause cancer or kidney damage at a high level of exposure” (emphasis added)). For starters, the Mandate itself concedes that the effects of COVID-19 may range from “mild” to “critical.” As important, however, the status of the spread of the virus has varied since the President announced the general parameters of the Mandate in September. (And of course, this all assumes that COVID 19 poses any significant danger to workers to begin with; for the more than seventy-eight percent of Americans aged 12 and older either fully or partially inoculated against it, the virus poses—the Administration assures us—little risk at all.)
- We next consider the necessity of the Mandate. The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had thevirus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.
- If the deficiencies we’ve already covered aren’t enough, other miscellaneous considerations seal the Mandate’s fate. For one, “[t]he Agency cannot use its ETS powers as a stop-gap measure,” Asbestos Info., 727F.2d at 422, but concedes that that is precisely what the Mandate is intended to do here. See 86 Fed. Reg. 61,402, 61,434–35 (admitting that “[c]rafting a multi-layered standard that is comprehensive and feasible for all covered work settings, including mixed settings of vaccinated and unvaccinated workers, is an extraordinarily challenging and complicated undertaking, yet the grave danger that COVID-19 poses to unvaccinated workers obliges the agency to act as quickly as possible”). For another, courts have consistently recognized that the “protection afforded to workers [by an ETS] should outweigh the economic consequences to the regulated industry,” Asbestos Info., 727 F.2d at 423, but for all the reasons we’ve previously noted, the Mandate flunks a cost-benefit analysis here.
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