Could it be that the massive number of lawsuits is actually working? The Occupational Safety and Health Administration (OSHA) announced on Wednesday morning that they were temporarily stopping their vaccine mandate for employers of over 100 employees. Right now, there are more than 30 lawsuits that have been filed across the country.
This decision from the Biden Administration is coming after the New Orleans based Fifth Circuit Court of Appeals ordered a stay on the mandate just two days after it was published.
There was a succinct statement from the court which stated that the OSHA mandate had grave constitutional implications and that enforcement of the mandate should pause until there was time for proper litigation to take place.
On Tuesday, through a rarely used lottery system, the federal courts decided to consolidate litigation into the Sixth Circuit Court of Appeals. This consolidation allows for one court to hear the general grievances laid out by several lawsuits of the same nature.
In the past, the lottery system usually involved product liability and antitrust cases. But in this case, the Sixth Circuit won the lottery.
The Daily Wire was the first lawsuit against OSHA’s mandate. Their argument was echoed by many of the other cases that were filed. This lawsuit says that the basis for OSHA’s order is unconstitutional on several considerations.
The first major condition is that vaccine mandates are traditionally reserved for the states, not the federal government. And second, if they did have the power to set in place these mandates, Congress would have had to delegate that power to OSHA through legislation.
And finally, in OSHA’s original publication, they maintain the order is an “emergency” rule. What this means is that OSHA could temporarily, in the event of an emergency, have the power to mandate vaccines without going through the normal rule-making process. Normally, the process considers public comments.
There are two main reasons the “emergency” justification does not hold water in light of Covid-19. One is that, historically, such “emergency mandates” are more narrow and never entail sweeping economic and legislative implications. And the second is that there are several therapeutics or alternative methods of treating Covid-19 available, and the pandemic is waning. Therefore, some are wondering whether the “emergency” nature of the rule is unclear.
Along another line of reasoning is the argument that the mandate changes the relationship between OSHA and the employees it was founded to protect. The regulatory agency exists to protect workers from externalities, toxic substances, employer negligence, among other things. The rationale being used for the mandate is that workers themselves are seen as toxic substances. This seems both overly broad and difficult to regulate.
So the bottom line is that OSHA seems to have overstepped its bounds in ordering employers to require vaccination.
Right now, the Biden administration has not yet filed for any motion to lift the order for a stay on the mandate. But they have told employers to keep preparing for an execution of the rule. So it is reasonable to project that they will file for a motion soon.
Ultimately because this unusual circuit-lottery procedure is already in place, the OSHA vaccine mandate’s legality is likely to be decided soon. The Fifth Circuit moved very quickly in giving their order. And litigants in the 6th Circuit, like The Daily Wire, moved to have the entire court hear these cases en banc. This is bypassing the normal three-judge panel process so that they can get a definitive ruling from the 6th Circuit.
It will not be a surprise if litigation on these cases ends up at the Supreme Court, appealed by whichever side is on the losing end.
Companies like The Daily Wire have vowed to stand up for the freedom of their employees and from government overreach.
Hopefully, there will be more and more who encourage other employers to do the same.