On Friday, a federal appeals court handed another victory to opponents of the Biden administration’s vaccine/testing mandate when it upheld an earlier stay and called the rule a “staggeringly overbroad” policy that likely violates both the U.S. Constitution and federal law.
The rule by the Occupational Safety and Health Administration (OSHA) requires large employers to mandate their workers either be vaccinated or undergo regular testing and mandatory masking. The rule applies to employers with 100 or more employees.
The U.S. Fifth Circuit Court of Appeals on Friday released a 21-page opinion affirming its initial stay on the rule – thus declining a request from the Biden administration to allow the rule to be enforced. The decision was unanimous (3-0).
The lawsuit was brought by more than 40 plaintiffs, including three religious employers: Answers in Genesis, Daystar Television Network and the American Family Association.
The three-judge panel said the rule burdens employers because it:
- “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.”
- “threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.”
“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,” the court ruled. “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.”
Federal law, the court ruled, likely places “an airborne virus beyond the purview of an OSHA” rule. The rule is “likely unconstitutional” and “unlawful,” the court added.
“Health agencies do not make housing policy, and occupational safety administrations do not make health policy,” the court ruled. “... OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”
The court approvingly quoted Supreme Court Justice Neil Gorsuch, who wrote this year that “civil liberties face grave risks when governments proclaim indefinite states of emergency.”
The judges affirmed the effectiveness of the vaccines – saying they “effectively protect vaccinated individuals against severe illness and death from COVID-19” – but said OSHA does not have the power to mandate them.
The three-judge panel was composed of three Republican presidential nominees: Edith Jones (Ronald Reagan), Kurt Damian Engelhardt (George W. Bush) and Stuart Kyle Duncan (Donald Trump).
The victory could be short-lived for opponents of the mandate, though. A lottery is expected to be held in the coming days to determine which circuit court will hear a consolidated lawsuit about the mandate, NPR reported. The decision by such a circuit would supersede the decision by the Fifth Circuit.
Related:
Appeals Court Stops Biden Vaccine Mandate: ‘Grave Statutory and Constitutional Issues’ Raised
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.
