Late on the evening of Friday, November 12, three judges sitting on the 5th Circuit Court of Appeals delivered a ruling that referred to the Biden administration’s proposed vaccine mandate, for companies with 100 employees or more, as “fatally flawed” and “staggeringly broad.”
The court order puts the mandate ‘on hold’ while the legal arguments proceed.
I shutter when I consider those descriptive phrases: ‘fatally flawed’ and ‘staggeringly broad’. How did the folks at OSHA feel about three judges — presumably, all with law degrees from respected universities — using language like that about their vaccine mandate? I can only imagine how they felt. My ex-wife Darlene often referred to me as “fatally flawed”… but never, not even once, as “staggeringly broad”.
The court flatly stated that OSHA’s Emergency Temporary Standard (ETS) “grossly exceeds OSHA’s statutory authority,” and that the mandate “raises serious constitutional concerns.”
Harsh words. Not merely “exceeds OSHA’s authority”, but “grossly” exceeds its authority. And not merely constitutional concerns, but “serious” constitutional concerns.
Even during the most grueling seasons of my marriage to Darlene, she never suggested that I had “grossly exceeded my authority”. She said a lot of other things, but never that.
The 5th Circuit judges — Kurt Engelhardt, Edith Jones and Stuart Kyle Duncan — also instructed OSHA to “take no steps to implement or enforce the Mandate until further court order.” You can download the ruling here if you don’t believe me.
Of course, this ruling was handed down late in the evening, on a Friday, when the judges were probably tuckered out from listening to lawyers make arguments all week long. (I listened to a lot of legal arguments during my divorce hearing, and I can attest to the fact that you feel pretty wiped out by the time your wife’s lawyer finally finishes with his cross examination.)
Maybe the judges could have been a little less nasty… if they’d taken the weekend to cool off. Did they really need to make a decision late on Friday? I doubt anyone was giving vaccinations over the weekend.
On the other hand, maybe OSHA deserved what they got.
Historically, OSHA had been very careful about using its power to issue Emergency Temporary Standards. During its 50-year history, OSHA had issued only ten ETS orders. Six of those orders were challenged in court, and of the six, five were overturned. (By judges who handed down their rulings late on a Friday, no doubt.) So the odds were not good, right from the start, for this pandemic ETS.
I wish I had known about ‘Emergency Temporary Standards’ when I was married. There were several instances when I could have laid down an ETS mandate for Darlene. Even if some judge threw it out later, I would have had the pleasure of laying it down. I guess it’s meant to be temporary anyway, since one of the words is “Temporary”.
One of the complaints from the 5th Circuit judges concerned OSHA’s claim that COVID-19 was a ‘new hazard’, to justify their ‘Emergency’ action. As we all know, things that are emergencies have to be both ‘new’ and ‘unexpected’. You would never call President Joe Biden, for example, a ‘new hazard’. He’s been a politician since 1973, and was already a well-known hazard when he served as Vice President under Barack Obama.
OSHA probably could have made the argument that COVID was a ‘new hazard’ back in March 2020. But by now, it’s definitely an ‘old hazard.’ Not as old as Joe Biden, but still old.
Old, and in the way. The virus, I mean.
Following the court decision, the Occupational Safety and Health Administration said it had “suspended activities related to the implementation and enforcement” of the COVID mandate “pending further developments in the litigation.”
Confusing times we live in. I’m really glad I don’t have 100 or more employees. (For so many reasons.)