Thomas Gallatin / November 8, 2021

Fifth Circuit Hits Brakes on Biden’s Vax Mandate

Judges temporarily block Biden’s new OSHA rule for private companies.

The Fifth Circuit Court of Appeals temporarily blocked Joe Biden’s private employer COVID vaccine mandate on Saturday. The three-judge panel decision was in response to lawsuits brought by both several Republican state attorneys general and private employers against Biden’s new Occupational Safety and Health Administration (OSHA) rule, which mandates that private companies with 100 or more employees require that workers are either vaccinated or receive weekly tests. The judges observed that Biden’s new OSHA rule presented “grave statutory and constitutional issues.”

“This is a great victory for the American people,” said Louisiana Attorney General Jeff Landry of the ruling. “Never before has the federal government tried in a such a forceful way to get between the choices of an American citizen and their doctor. To me that’s the heart of the entire issue.”

The OSHA regulation penalizes employers $14,000 for each violation. This new rule, by the way, is distinct from Biden’s vaccine mandate for all federal employees and federal contractors, although both mandates are enforced by OSHA.

At least 27 states have filed lawsuits against Biden’s vaccine mandate, and it’s not just Republicans who are objecting. Kansas Democrat Governor Laura Kelly issued a critical statement over the weekend: “I reviewed the new vaccine mandate from the Biden Administration. 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.”

Moreover, the OSHA enforcement of Biden’s COVID vaccine mandate is where legal scholars see significant overreach and violation of constitutional authority. Essentially, the Biden administration has unilaterally expanded the role of OSHA beyond what Congress authorized. And it is on this basis where the courts may fault and ultimately strike down Biden’s overreach as unconstitutional.

The Biden administration has played fast and loose with the rules in order to avoid the checks and balances in place to prevent exactly this sort of government abuse of power. Not only have the Biden administration’s tyrannical do-gooders sought to unconstitutionally expand OSHA’s authority, they have also dubiously applied an “emergency temporary standard” excuse in order to justify bypassing a federal agency requirement that the public receive notice of a new rule and have a period for public response and scrutiny before any new rule can be finalized.

This fight is far from over, as Biden’s vaccine mandate is scheduled to take full effect on January 4. Thankfully, however, the Fifth Circuit pumped the brakes on this abuse of power, at least temporarily. The next question is whether the court will decide to issue a nationwide injunction preventing the implementation of the new OSHA vaccine mandate until it has worked its way through the courts, likely requiring a ruling by the U.S. Supreme Court. Millions of Americans’ jobs are on the line.

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