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.

 

COVID Legal USA is your partner in fight mandatory vaccines and other COVID mandates. Follow us on Telegram and Twitter. Read about white pine needles and order them here.

 

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Indomitable
Indomitable
20 days ago

Wait one minute!!
My company’s HQ is in Texas now.
Does this mean they cannot enforce the mandate against me, even though I live in another state?

Last edited 20 days ago by Indomitable
Anne Beckett
20 days ago
Reply to  Indomitable

Well, no mandate is a law, so I would say you should start with that.
We are no longer in an, “emergency”, as emergencies are, legally, limited both in scope and in time. Emergencies are limited to 30 days and cannot, legally, be renewed. Yet, we’re in a 20 or 21 month emergency? Come on!
Because we are not in an emergency, no president, or governor, or mayor, can legitimately decree any new laws. No legislature has met, anywhere in this country, to continue any of this, or to legislate any laws, at all. Therefore, this is not legal or legitimate.
I would ask the boss if he or she wishes to accept any and all liability for any illnesses, disabilities, or even death(s), arising from this injection of this toxic substance. Get him or her to sign.

All Sham No Wow
All Sham No Wow
20 days ago

Great update. Kind sir how does this apply in your opinion to the federal employee mandate? Maybe not legal for businesses over 100 employees not legal for federal employees? Your or anyones thoughts?

John McClane
John McClane
20 days ago

They are so adamant about getting every single human being jabbed, it’s like a sick, twisted obsession that you would only see in psychopaths.

It’s just a mask.” “It’s just six feet.” “It’s just two weeks.” “It’s just non essential businesses.”” It’s just for the useless eaters” “It’s just non essential workers.” “It’s just in the a bars.” “It’s just for going to restaurants.” “It’s just to keep from overwhelming the hospitals.” “It’s just to make the cases go down.” “It’s just to flatten the curve.” “It’s just a few inmates.” “It’s just to keep others from getting scared.” “It’s just for a few more weeks.” “It’s just a few more months” “It’s just for a few more years” “It’s just for going to church.” “It’s just a bracelet.” “It’s just an app.” “It’s just for tracing.” It’s just for tracking ” ” It’s just more dying people ” “It’s just for the greater good” “It’s just to let others know you’re safe to be around.” “It’s just to let others know who you’ve been in contact with.” “It’s just a few more deaths.” “It’s just a large gathering” “It’s just a few violent protests.” “It’s just a vaccine.” “It’s just more vaccines” “It’s just a little microchip.” “It’s just a blood test.” “It’s just a scan.” “It’s just for medical information.” “It’s just a vaccination certificate.” “It’s just like a credit card.” “It’s just a few places that don’t take cash.” “It’s just vaccine passports”. “It’s just so you can travel.” “It’s just so you can get your driver’s license.” “It’s just so you can vote.” “It’s just a few more 20,000 cases” “It’s just another 100,000 doses” ” It’s just more booster shots” “It’s just another booster shot” “It’s just more variants” ” It’s just another scientific study” “It’s just another injection in our bodies” “It’s just more studies” “It’s just to not let people make their own decisions” “It’s just for people with underlying causes” “It’s just more lies from the CDC” “It’s just more lies from the FDA” “It’s just more vaccine mandates”” It’s just about getting the vaccination or lose your job” “It’s just time to take out these tyrannical dictators” “It’s just The New World Order under the anti-christ., “It’s just the MARK OF THE BEAST!

jlplb
jlplb
20 days ago
Reply to  John McClane

It is NOT the mark of the beast. No one seems to understand this with what it says in Revelation. The mark is very specific to 2 places which are the right hand and forehead. It will take place during the 7 year tribulation with the anti-Christ is in charge of everything on Earth. People receiving this mark will know exactly what they are doing in regards to taking the mark. The church will have been raptured by this time. This jab is just conditioning people to receive the mark of the beast sometime in the future. The Bible doesn’t lie as the word comes from God. The mark of the beast for how it is written in Revelation is true. It is NOT getting a jab in the arm!

John McClane
John McClane
20 days ago
Reply to  jlplb

I know its not the mark of the beast, I never said it was, I was just showing the rhetoric they have been peddling out for over 18 months and what its ultimately leading to, so with a lazy attitude of, it’s just…blah blah, it eventually will lead to the same people saying, it’s just the mark of the beast (when it comes along) and they will go along with it and excuse it as they have everything else, that’s all I meant.

Kris
20 days ago
Reply to  jlplb

It is very clear that the name, the number and the mark of the Beast are all connected. It us also pretty clear that this vax is one of those. What makes you so sure that all true believers will be raptures out of harms way? What about all the Christians who will be beheaded for the witness of Jesus? The End Times is a test, and no-one gets a free pass to avoid that test. IF there will be a rapture, and that’s a big IF, I believe it will be moments before the final battle, when Christ returns on a white horse.

dddd
dddd
20 days ago

That was a decision by a Reagan judge (Edith Jones) and two Trump judges.

The odds of it being affirmed by the out of control and best that money can buy US Supreme Court are pretty slim; IMO.

All Sham No Wow
All Sham No Wow
20 days ago
Reply to  dddd

Sad to say but hope justice will prevail…no pun intended. My take is that all of us affected by this in the military and fed gubment will be reinstated, back paid and rank restored when the adults are back in charge and the coup d’eta is reversed by states doing the right thing, or the next election. The taxpayer should not be in the hook and the bigpharmus should pay. Of course that will be after the leaders and those complicit with the coup d’eta’s bank accounts and assets seized. That would include the CCP!

dddd
dddd
20 days ago

or the next election. 
>>>>>

The last “election” should be prima facie evidence that there will be no more (legitimate) elections in America. They threw it in your faces and laughed.

A Great American Emperor or Empress (Caesar or Semiramis) must arise with Absolute Power to right all the wrongs without interference; and the Congress must be dissolved; and the courts instructed that they are to concern themselves with only pre Marbury v Madison issues; as they were so intended before John Marshall ran astray two centuries ago.

Anne Beckett
20 days ago

Tell you what I know; each and every case which starts with the (false, or unproven) belief there is an actual pandemic, stemming from an isolated/purified virus sample, will lose. Why? It’s because both are unsubstantiated claims, or, “beliefs”. Courts are set up to deal in facts and not in beliefs, rumor, innuendo, or fallacies. It’s just the way it goes.
Any attorney who begins with, “we are in a pandemic”, needs a slap.

Kevin G
Kevin G
20 days ago

Poor Pampa BiDung, he’s having some resistance to his push to help bring in The NU Weird Odor and the Schwab & Gates & Soros Glow-Bull-Recess!… He’s a mentally lacking puppet and his ‘Old-Timers’ DIS-ease is becoming more obvious every day!

Car
Car
20 days ago

It seems more clear now why Biden was ” Selected ” instead of Trump…it would not have been politically feasible for Trump to issue this current Mandate…the MAGA base would have been in Jeopardy…

Atom man
Atom man
20 days ago

This is good news – I hope it continues. Meanwhile for all your readers, especially AFAM ones, you may want to link to an article on vitamin D3. A 10 nation study showed D3 deficiency is related to severe disease and increased chances of death. This may be why winter is called “cold and flu season” – you bundle up against the cold and expose less skin to the Sun’s rays. D3 is produced in the body by exposure to sunlight. People with darker skin require more Sun exposure to produce D3 but are less likely to develop skin cancers. With lighter hair and eye color, I stay out of the Sun for the last reason so I take D3 pills. Also, it is curious that lockdowns cause people to drink more alcohol and coffee too – those things can remove vitamin B1 from the body. One blogger has noted that the list of symptoms for B1 and zinc deficiency parallel those for “COVID-19”. B1 has been called “the gatekeeper to the immune system”. I take B1 and zinc as well. So lockdowns cause people to stay indoors out of the Sun and knock back booze and this is extremely bad public policy. Thank you for your work. I did send a donation this past week.

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