An In-Depth Look at the Appeals Court’s Stay Against Biden Vax Mandate

The other day I highlighted the unanimous ruling by 3 judges on a New Orleans federal appeals court to halt the Biden OSHA vaccine mandate for private businesses. I wanted to get more in-depth on that and look at the court’s ruling in full.

The ruling was issued by Circuit Judge Curt Englehardt. I have edited out the annotations and parentheticals and references for clarity:

The Occupational Safety and Health Administration (OSHA) “reasonably determined” in June 2020 that an emergency temporary standard (ETS) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.” This was not the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so. In fact, in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived. The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that “[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,” so “[t]hat power should be delicately exercised, and only in those emergency situations which require it.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab. (1974).

This case concerns OSHA’s most recent ETS—the Agency’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask. An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay.

Many of the petitioners are covered private employers within the geographical boundaries of this circuit. Their standing to sue is obvious— the Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.

The OSHA mandate essentially dumps the entire vaccine mandate on the employers–you take care of it, and if you don’t, you’re going to be slapped with massive fines.

The “traditional stay factors . . . govern a request for a stay pending judicial review.” Under the traditional stay standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Each of these factors favors a stay here.

While all four of the factors are important, the most important is the first one, “whether the stay applicant has made a strong showing that he is likely to succeed on the merits.” The appeals court believes this is the case–that the challenges to the mandate will succeed on the merits.

We first consider whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.

We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651. It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.

In other words, if you want a nationwide vax mandate, pass a law in Congress and implement it yourself that way. But it may not be done through bureaucratic fiat.

Engelhardt now takes aim at the constitutionality of the Mandate–or rather the lack thereof:

On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).

A great point. This Mandate is as heavy-handed as it gets. There is no consideration for the fact that every employer–and every person employed–is a different and unique case. It treats everyone the same.

The logic behind the Mandate is childish, almost infantile: “VIRUS BAD. VACCINE GOOD. EVERYONE MUST GET VACCINE.”

The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.

Judge Engelhardt isn’t buying Covid as an “emergency.” Even if you just take the time since the vaccine was released, it’s been nearly a year.

After the President voiced his displeasure with the country’s vaccination rate in September, the Administration pored over the U.S. Code in search of authority, or a “work-around,” for imposing a national vaccine mandate. The vehicle it landed on was an OSHA ETS. The statute empowering OSHA allows OSHA to bypass typical notice-and-comment proceedings for six months by providing “for an emergency temporary standard to take immediate effect upon publication in the Federal Register” if it “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” U.S.C. § 655(c)(1).

As the name suggests, emergency temporary standards “are an ‘unusual response’ to ‘exceptional circumstances.’” Thus, courts have uniformly observed that OSHA’s authority to establish emergency temporary standards under § 655(c) “is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’

The Mandate is certainly an “extraordinary power,” but as far as the other two parts–“delicately exercised” and in “limited situations”? No way.

But the Mandate at issue here is anything but a “delicate exercise” of this “extraordinary power.” Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address. 

By any objective measure, Covid does not pose a “grave danger” to just about anybody this Mandate purports to be designed to protect.

The people most at-risk to Covid are retired anyway.

Thus, as § 655(c)(1) plainly provides, to be lawfully enacted, an ETS must: (1) address “substances or agents determined to be toxic or physically harmful”—or “new hazards”—in the workplace; (2) show that workers are exposed to such “substances,” “agents,” or “new hazards” in the workplace; (3) show that said exposure places workers in “grave danger”; and (4) be “necessary” to alleviate employees’ exposure to gravely dangerous hazards in the workplace. As we have noted in the past, the precision of this standard makes it a difficult one to meet.

Only the Covidiots would call Covid a “grave danger” to the 100 million workers the Mandate affects.

In its brief, Texas makes a compelling argument that § 655(c)(1)’s neighboring phrases “substances or agents” and “toxic or physically harmful” place an airborne virus beyond the purview of an OSHA ETS in the first place. To avoid “giving unintended breadth to the Acts of Congress,” courts “rely on the principle of noscitur a sociis—a word is known by the company it keeps.”

Basically the point being made here is that an OSHA ETS would not apply to a virus like Covid. It’s pretty transparently meant for harmful toxins or chemicals like asbestos or something like that.

Here, OSHA’s attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.

Covid is not a problem specific to workplaces, so why is OSHA spearheading the vaccine mandate?

The judge also points out that Covid isn’t life-threatening to the vast majority of employees, which is basically the first and foremost argument against this ridiculous Mandate. We don’t mandate flu shots, and Covid is basically the flu.

But the overall point the judge is making is that an OSHA ETS is meant to address the presence of toxic or poisonous substances in the workplace, not respiratory viruses.

Any argument OSHA may make that COVID-19 is a “new hazard[]” would directly contradict OSHA’s prior representation to the D.C. Circuit that “[t]here can be no dispute that COVID-19 is a recognized hazard.”

A natural first step in enacting a lawful ETS is to show that employees covered by the ETS are in fact exposed to the dangerous substances, agents, or hazards at issue—here, COVID-19. As it pertains to the vast majority of private employees covered by the Mandate, however, OSHA fails to meet this threshold burden. In defending the Mandate before this court, the Government credits OSHA with “describ[ing] myriad studies showing workplace [COVID-19] ‘clusters’ and ‘outbreaks’ and other significant ‘evidence of workplace transmission’ and ‘exposure.’” But this misses the mark, as OSHA is required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces. 

Every single last one of them from sea to shining sea.

Judge Engelhardt knows what he’s doing here. He’s calling the bluff. He knows there’s zero chance OSHA will, much less can, provide evidence of uncontrolled “outbreaks” of Covid in every private workplace of 100+ employees in the country.

If the mandate requires every single employee in the country at a company of over 100+ employees, then OSHA, in order to be granted an ETS, must show that every single person the Mandate effects is in direct and grave danger due to Covid.

By now it’s clear that an OSHA ETS is meant for much, much smaller and more narrow cases. It is absolutely not meant to apply to 100 million people across the country.

Of course, OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.” As discussed below, this kind of overbreadth plagues the Mandate generally.

Now we get to the real crux of the matter:

Equally problematic, however, is that it remains unclear that COVID19—however tragic and devastating the pandemic has been—poses the kind of grave danger § 655(c)(1) contemplates. See, e.g., Int’l Chem. Workers, 830 F.2d at 371 (noting that OSHA itself once concluded “that to be a ‘grave danger,’ it is not sufficient that a chemical, such as cadmium, can cause cancer or kidney damage at a high level of exposure.”

A hilarious self-own by OSHA. If cancer is not sufficient to pass the threshold of “grave danger,” then there is absolutely no way Covid can.

Now Engelhardt uses the government’s own assessments of the vaccine against them:

For starters, the Mandate itself concedes that the effects of COVID-19 may range from “mild” to “critical.”

You don’t say.

As important, however, the status of the spread of the virus has varied since the President announced the general parameters of the Mandate in September. (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.) See, e.g., 86 Fed. Reg. 61,402, 61,402–03 (“COVID-19 vaccines authorized or approved by the [FDA] effectively protect vaccinated individuals against severe illness and death from COVID-19.”).

The point here is that 78% of Americans over the age of 12 are already “inoculated” against the virus, and in the government’s own words, the vaccine “effectively protects” against severe illness and death from Covid. So why the need for an “emergency” Mandate?

The Administration’s prior statements in this regard further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS. In reviewing agency pronouncements, courts need not turn a blind eye to the statements of those issuing such pronouncements. In fact, courts have an affirmative duty not to do so.

Here comes the biggest own:

It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.

See, e.g., Occupational Exposure to Bloodborne Pathogens, 54 Fed. Reg. 23,042, 23,045 (May 30, 1989) (“Health in general is an intensely personal matter. . . . OSHA prefers to encourage rather than try to force by governmental coercion, employee cooperation in [a] vaccination program.”);

The judge is citing an OSHA statement from 1989. What a legend.

Also, he’s referring to when Biden said this:

Letter from Loren Sweatt, Principal Deputy Assistant Sec’y, OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020) [hereinafter Sweatt Letter] (acknowledging as a general matter that it “would not be necessary for OSHA to issue an ETS to protect workers from infectious diseases” because “OSHA lacks evidence to conclude that all infectious diseases to which employees may be exposed at a workplace constitute a ‘grave danger’ for which an ETS is an appropriate remedy”)

This is a letter from OSHA to the now-former President of the AFL-CIO Richard Trumka (who died of a heart attack just recently in August) in 2020 which basically invalidates all the reasons OSHA is now citing for implementing an ETS.

You almost wonder if the Trump administration foresaw this and planned for it by making official, on-the-record statements from OSHA against this very thing OSHA is now trying to do at Biden’s direction.

Because it is generally “arbitrary or capricious” to “depart from a prior policy sub silentio,” agencies must typically provide a “detailed explanation” for contradicting a prior policy, particularly when the “prior policy has engendered serious reliance interests.” OSHA’s reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.


To be sure, “OSHA’s assessment of . . . scientifically complex [facts] and its balancing of the competing policies that underlie the decision whether to issue an ETS . . . are entitled to great deference,” but this is not a case where any amount of deference would make a bit of difference.

Translation: OSHA’s case is so laughably bad no amount of “deference” to their understanding of “scientific complexities” would help their case.

Okay, now we’ve seen this passage in the ruling before:

We next consider the necessity of the Mandate. The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.

The Vaccine Pushers give absolutely no credit at all to natural immunity, but this is nothing new.

In light of this immense complexity, one might naturally ask the Agency—is this situation truly amenable to a one-size-fits-all Mandate? The likely answer may be why OSHA has in the past “determined that the best approach for responding to the pandemic is to enforce the existing OSH Act requirements that address infectious disease hazards, while also issuing detailed, industry-specific guidance,” which is generally “more effective than promulgating a rigid set of requirements for all employers in all industries based on limited information.” See Sweatt Letter at 2. In sum, as OSHA itself has previously acknowledged, an ETS appears to be a “poorlysuited approach for protecting workers against [COVID-19] because no standard that covers all of the Nation’s workers would protect all those workers equally.”

Again, I really do wonder if the Trump people foresaw all this and deliberately wanted to give the courts ammunition to use against exactly this type of OSHA-based Vax mandate. It’s like they went out of their way to preemptively discredit it.

At the same time, the Mandate is also underinclusive. The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer. The reason why? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate. See 86 Fed. Reg. 61,402, 61,403 (“OSHA seeks information about the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs.”). That may be true. But this kind of thinking belies the premise that any of this is truly an emergency.

Exactly. Why is this only an “emergency” for companies with 100+ employees, and not an emergency for companies with fewer than 100 employees?

Indeed, underinclusiveness of this sort is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact “compelling.” Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542–46 (1993) (city’s ban on religious animal sacrifice but corresponding allowance of other activities similarly endangering public health belied its purportedly “compelling” interest in safe animal disposal practices). The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.

Direct hit.

It lastly bears noting that the Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits, or at least counsel against adopting OSHA’s broad reading of § 655(c) as a matter of statutory interpretation.

First, the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. Cf. NFIB v. Sebelius, 567 U.S. 519, 522 (2012) (Roberts, C.J., concurring); see also id. at 652–53 (Scalia, J., dissenting).

And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power. Zucht v. King, 260 U.S. 174, 176 (1922) (noting that precedent had long “settled that it is within the police power of a state to provide for compulsory vaccination”); Jacobson v. Massachusetts, 197 U.S. 11, 25–26 (1905) (similar).

This is what I was talking about the other day, and Judge Engelhardt agrees: vaccine mandates have long been established to be powers only possessed by the individual states, and only when passed legislatively. Vaccine mandates have never been within the purview of the federal government, and definitely not vaccine mandates that are issued by bureaucratic fiat.

The Mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity, [which is] traditionally within the States’ police power. See Sebelius, 567 U.S. at 554 (Roberts, C.J., concurring) (“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.”);

This is the Obamacare Supreme Court case, “Sebelius.”

See also Bond v. United States, 572 U.S. 844, 854 (2014) (“The States have broad authority to enact legislation for the public good—what we have often called a ‘police power.’ . . . The Federal Government, by contrast, has no such authority. . . .” Indeed, the courts “always have rejected readings of the Commerce Clause . . . that would permit Congress to exercise a police power.” United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring). In sum, the Mandate would far exceed current constitutional authority.

“Police power” has always belonged to the states, not the federal government.

Second, concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation. As Judge Duncan points out, the major questions doctrine confirms that the Mandate exceeds the bounds of OSHA’s statutory authority. Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).

In other words, if you want OSHA to have the power to force 100 million Americans to get a vaccine, then have Congress passing a law that expressly gives OSHA that power. This is too important an issue to not go through Congress, and to just “assume” that OSHA has the power to do it.

The Mandate derives its authority from an old statute employed in a novel manner, imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA’s core competencies, and purports to definitively resolve one of today’s most hotly debated political issues.

But I’m sure they’ll say, “The FDA approved the vaccine! It is Safe™ and Effective™ and no one can claim otherwise!” But they can go fuck themselves, says Judge Engelhardt.

There is no clear expression of congressional intent in § 655(c) to convey OSHA such broad authority, and this court will not infer one. Nor can the Article II executive breathe new power into OSHA’s authority—no matter how thin patience wears.

A direct shot at Biden. Lol.

In the footnote, Englehardt further states:

Here, it is simply unlikely that Congress assigned authority over such a monumental policy decision to OSHA—hard hats and safety goggles, this is not.

And “hard hats and safety goggles” is really what OSHA was created to regulate in the first place, not vaccinations.

At the very least, even if the statutory language were susceptible to OSHA’s broad reading—which it is not—these serious constitutional concerns would counsel this court’s rejection of that reading.

Accordingly, the petitioners’ challenges to the Mandate show a great likelihood of success on the merits, and this fact weighs critically in favor of a stay.

So get fucked.

It is clear that a denial of the petitioners’ proposed stay would do them irreparable harm. For one, the Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s). For the individual petitioners, the loss of constitutional freedoms “for even minimal periods of time . . . unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

I’m sure the Covidiots would argue that you don’t have a Constitutional right to not be vaccinated, because such a Constitutional right would hurt their feelings and as we all know, they are guided 100% by emotion. The whole entire world should be governed and shaped exactly to their feelings and anyone who disagrees should be either killed or imprisoned.

Likewise, the companies seeking a stay in this case will also be irreparably harmed in the absence of a stay, whether by the business and financial effects of a lost or suspended employee, compliance and monitoring costs associated with the Mandate, the diversion of resources necessitated by the Mandate, or by OSHA’s plan to impose stiff financial penalties on companies that refuse to punish or test unwilling employees. The Mandate places an immediate and irreversible imprint on all covered employers in America, and “complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance costs.” See Texas v. EPA, 829 F.3d 405, 433 (5th Cir. 2016) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 220–21 (1994) (Scalia, J., concurring in part and in the judgment)).

But government bureaucrats do not care how much their rules and regulations burden businesses. In their view, businesses are to do as we say and that’s that.

The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.

That’s not going to go over well with the people who have made federal overreach the core principle of everything they do.

In contrast, a stay will do OSHA no harm whatsoever. Any interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate. Moreover, any abstract “harm” a stay might cause the Agency pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.

So suck a dick, OSHA.

For similar reasons, a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months. Of course, the principles at stake when it comes to the Mandate are not reducible to dollars and cents. The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials. 

And this is the heart and soul of the matter.

It is, and has always been, a matter of freedom. My body, my choice.

And if the government doesn’t like someone’s decision, well too bad. The government does not own you. You are not their property, their child.

It is a moral and philosophical debate at heart: should the government have the power to force you to get a vaccine?

Unfortunately I think this is going to have to go to the Supreme Court, where they settle moral and philosophical matters like this once and for all. It’s what the Supreme Court does.

And that’s what scares me. I do not trust Roberts, Kavanaugh and Barrett to side in favor of liberty. I could totally see Roberts saying some dumb shit about how “While liberty is so important in this land, it is not as important as the profit margins of Sacred Corporations like Pfizer, nor the feelingzzz of brainwashed Covidiots.” And then Kavanaugh and Barrett go along.

The Judge continues:

The Constitution vests a limited legislative power in Congress. For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down. In the mine run of cases—a transportation department regulating trucking on an interstate highway, or an aviation agency regulating an airplane lavatory—this is generally well and good. But health agencies do not make housing policy, and occupational safety administrations do not make health policy. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.

For these reasons, the petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration’s “COVID-19 Vaccination and Testing; Emergency Temporary Standard” remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.

In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.

Judge Stuart Duncan issued a concurring statement, which basically means “I second everything he said, but I have some additional reasons of my own I’d like to make known”.

In addition to the many reasons ably identified by Judge Engelhardt’s opinion, I underscore one reason why these challenges to OSHA’s unprecedented mandate are virtually certain to succeed.

Courts “expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’” OSHA’s rule reaches “two-thirds of all private-sector workers in the nation.” It compels covered employers to (1) make employees get vaccinated or get weekly tests at their expense and wear masks; (2) “remove” non-complying employees; (3) pay per-violation fines; and (4) keep records of employee vaccination or testing status. OHSA invokes no statute expressly authorizing the rule. Instead, OSHA issued it under an emergency provision addressing workplace “substances,” “agents,” or “hazards” that it has used only ten times in the last 50 years and never to mandate vaccines.

Whether Congress could enact such a sweeping mandate under its interstate commerce power would pose a hard question. See NFIB v. Sebelius, 567 U.S. 519, 549–61 (2012). Whether OSHA can do so does not. I concur in granting a stay. 

In other words, Congress might be able to legally enact a nationwide vaccine mandate. But OSHA most certainly does not have that power.

Obviously none of this is going to change the minds of the Covidiots, who are driven entirely by feelings and fear.

But it is pretty clear from this ruling that the OSHA vaccine mandate is utter garbage and should be thrown out by the courts.

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