E&W Blog

President Biden knew that he didn’t have the authority to issue a national vaccine mandate, yet he instructed the Occupational Safety and Health Administration (OSHA) to move forward with this diktat as a “work around.” This case and others are now consolidated in the Sixth Circuit U.S. Court of Appeals and we hope that the judges and the American people will take the great arguments from the Fifth Circuit U.S. Court of Appeals into consideration.

In Case You Missed It, the Fifth Circuit argues that Biden’s vaccine mandate is likely unlawful and unconstitutional, below are its key takeaways.

This far exceeds OSHA’s intended purpose:

“The Occupational Safety and Health Act, which created OSHA…was not—and likely could not be…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.”

Biden’s vaccine mandate is nonsensical and likely unlawful:

“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...) 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).” 

The so-called “emergency” is now two years old:

“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.

Biden’s mandate is “a one-size-fits-all sledgehammer”:

“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… ‘is an ‘extraordinary power’ that is to be ‘delicately exercised’ in only certain ‘limited situations.’

“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.”