Legal Update: Fifth Circuit Court of Appeals reaffirms stay on Biden vaccine mandate, calls it “fatally flawed”

TheCOVIDBlog.com
November 15, 2021

UPDATE November 18, 2021 – OSHA officially halts nationwide enforcement of Biden “vaccine mandate” following federal court order.

—ORIGINAL STORY—

NEW ORLEANS — Mainstream media focused solely on the murder trial of Kenosha, Wisconsin shooter Kyle Rittenhouse for most of the last three days. There’s never been a more blatant, and frankly pathetic, display of Hollywood-produced justice to not only create further divide in the United States, but also distract the masses from what’s important to each and every one of us.

The Joe Biden Executive Order mandating mRNA and viral vector DNA injections for all workers in companies with over 100 employees went into effect on November 5.  It was immediately challenged by several states and numerous private companies in federal court across the country. And there’s already been significant progress in eventually striking down the Executive Order all together. But you wouldn’t know it if mainstream media are your primary sources for news.

Five states immediately challenge the mandate

The Attorneys General for Louisiana, Mississippi, South Carolina, Texas and Utah joined several private companies in an emergency challenge to the so-called “Biden vaccine mandate” on November 5. The U.S. Fifth Circuit Court of Appeals, in a non-published opinion, granted a temporary stay the next day, enjoining the Occupational Safety and Health Administration (“OSHA”) from enforcing and/or implementing the mandate.

The Court gave the Biden Administration two days to file a response to the petition that ultimately seeks a permanent injunction. A three-judge panel reaffirmed the temporary stay on Friday, November 12, pending full exhaustion of the case on the merits. But all indications point to the Fifth Circuit issuing a permanent injunction and the case going to the U.S. Supreme Court.

What’s being challenged is the Emergency Temporary Standard (ETS) by the Biden Administration, giving OSHA the power to enforce the President’s vaccine mandate. An ETS is an “extraordinary” power that has only been used 10 times in OSHA’s 50-year history. Only one of those ten survived court challenges, according to the Fifth Circuit three-judge panel. The instant ETS (86 Fed. Reg. 61,402; Nov. 5, 2021; to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928) is Biden’s vaccine mandate for all companies with more than 100 employees. It allows OSHA to fine companies with over 100 employees upwards of $14,000 per violation of the mandate.

Federal appeals court halts Biden vaccine mandate

The Petitioners argued that there is “cause to believe there are grave statutory and constitutional issues with the Mandate.” The federal courts only issue stays pending judicial review if the judges believe 1) the case is likely to succeed on the merits, 2) the Petitioners will be irreparably injured absent a stay, 3) the opposing party will not harmed in any way by the stay, and 4) there is public interest in the case. The judges ruled all factors favor the Petitioners.

The Fifth Circuit determined that the case is likely to succeed on the merits “for a multitude of reasons.” Not only did the Court imply that the Executive Order “grossly exceeds OSHA’s statutory authority,” but also presents serious Constitutional concerns. The Court noted that OSHA cannot satisfy the “grave danger” standard. The panel used Biden’s and the Centers for Disease Control’s (CDC’s) own propaganda against them.

“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.”

The Court also said it makes no sense that only companies with 100 or more workers are subject to the mandate if the goal is safety for all workers. Finally, the judges said the mandate violates the Commerce Clause of the Constitution because, “A person’s choice to remain unvaccinated and forgo regular testing is non-economic inactivity.” Only states may mandate vaccines, not the federal government. Read the full Fifth Circuit opinion here.

COVID Legal USA – Fighting Mandatory Vaccines

So what does all this mean for the average worker? The Fifth Circuit has direct jurisdiction over the federal courts in Louisiana, Mississippi and Texas. Thus, the Biden vaccine mandate is unenforceable in at least those states pending full review of the case. Regardless, the power of this Executive Order lies in the willingness of so many companies to enforce it. There is simply no legal grounds for The White House issuing nationwide vaccine mandates. The Fifth Circuit is the first federal court to affirm this fact; and it appears inevitable the Court will issue a permanent injunction.

More dominoes to fall

This is only the beginning for challenges to the so-called Biden vaccine mandate. The State of Missouri filed a lawsuit in the U.S. District Court of Eastern Missouri on November 10. Missouri was joined by nine other states, including Kansas, which has a Democrat governor. The lawsuit not only asks the Court for both preliminary and permanent injunctions to halt the Biden mandate, but also to declare that it violates the Administrative Procedures Act (5 U.S.C. §§ 701–706). Motions for preliminary injunction and expedited briefing were filed on Friday, November 12. The Court has yet to rule on either as of publishing. Read the full complaint here.

Georgia was joined by Alabama, Florida and several private companies in its November 5 petition in the Eleventh Circuit Court of Appeals challenging the Biden mandate. In all a total of 26 states are currently involved in some sort of judicial action challenging to the Biden mandate. It’s also important to note that the U.S. Sixth Circuit Court of Appeals upheld a preliminary injunction against Western Michigan University (“WMU”) on October 7. Several WMU athletes applied for religious exemptions from the school’s vaccine mandate. WMU denied or ignored all of them. The Sixth Circuit affirmed the lower court’s injunction, and allowed the student athletes back on their respective teams.

SEE ALSO: Maggie Williams: Oregon public schools change mask policy after track runner collapses due to lack of oxygen (May 6, 2021)

The only case challenging vaccine mandates that received recent, significant mainstream media coverage is the U.S. Supreme Court’s rejection of an emergency appeal from Maine. Healthcare workers challenged the mandate on grounds that there’s no option for religious exemptions. The Court denied the petition because Maine enacted a law in 2019 that preemptively prohibited religious exemptions from vaccine mandates.

The petitioners in the case tried challenging a state law via an interlocutory appeal, which the Supreme Court disallowed despite dissent from Justice Neil Gorsuch and two others. In other words, the petitioners must directly challenge the constitutionality of Maine’s 2019 law to challenge denials of religious exemptions. Perhaps they can do so on remand back to the district court.

The moral of this article is simple – if you have the ambition, motivation and wherewithal to challenge workplace “vaccine mandates,” there’s a good chance at victory if reasonable accommodations are realistic. But there’s no broad brush solution, no “forms” and no magic bullet. There are only two ways to stop the jab for jobs doctrine: 1) receiving an exemption and reasonable accommodations from your employer, or 2) a preliminary injunction from a judge. The process may seem daunting. But it’s literally a matter of life and death.

Stay vigilant and protect your friends and loved ones.

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