U.S. 5th Circuit Court of Appeals in New Orleans STAYS the OSHA Covid-19 Mandate and Protects the Liberty of Individuals to Make Intensely Personal Decisions According to Their Own Conviction
The case will now be sent to the Court of Appeals for the Sixth Circuit
which will decide whether to keep in place the stay that was ordered on Nov. 6th
On November 12, 2021, the United States 5th Circuit Court of Appeals followed up on their November 6, temporary STAY order, which had required further briefing and expedited judicial review, and firmly ordered that OSHA take no steps to implement or enforce its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS). Read Full Opinion Here.
The OSHA ETS (aka the Mandate) attempts to compel employers of two-thirds of all private-sector workers in the nation 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.
According to the Court’s order, the enforcement of this OSHA ETS remains STAYED pending judicial review by the Sixth Circuit U.S. Court of Appeals of the petitioners’ underlying motions for a permanent injunction.
The 5th Circuit Court termed it as “obvious”, that the Occupational Safety and Health Act was enacted by Congress to “assure Americans safe and healthful working conditions and to preserve our human resources”, and
“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.” Cf. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488–90 (2021) (per curiam).
The Court likened the temporary standard to 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.” Further, it pointed out that 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.”
The Court’s opinion is seminal to the future of our country. The boundaries between federal and state jurisdictions are fundamental to the architecture of our Constitution. In its opinion the Court sets out basic constitutional principles:
“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).” and;
“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.”
The Court also pointed out the significant negative impact that such a Mandate would have:
“It 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.’)” and;
“…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.” and;
“The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.” and;
“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.”
Finally, the Court closes by stating:
“But health agencies do not make housing policy, and occupational safety administrations do not make health policy. Cf. Ala. Ass’n of Realtors, 141 S. Ct. at 2488–90. 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.”
Our hope is that the 6th Circuit Court will grant a permanent injunction as a next step in protecting the personal liberty and health freedom rights of all Americans. Stay tuned!
via Sharyl Attkisson:
The federal government has acknowledged it is "taking no steps to implement or enforce" President Biden's Covid-19 vaccine mandate on private employers.
OSHA has suspended the vaccine mandate
by Alex Berenson
In the wake of the Fifth Circuit stay that found it likely to be struck down as unconstitutional.
This means that if your employer tells you the Dec. 4 deadline is a federal requirement, your employer is lying.
SOURCE: https://www.osha.gov/coronavirus/ets2
OSHA Suspends Biden’s Employer Vaccine Mandates Following Court Order
The Occupational Safety and Health Administration said Tuesday it suspended the mandates to comply with a Nov. 12 ruling by the 5th Circuit Court of Appeals barring the agency from enforcing them pending judicial review. A federal judicial panel on Tuesday assigned the case to an appeals court in Cincinnati.
In a major blow to the Biden administration, the Occupational Safety and Health Administration (OSHA) on Tuesday suspended implementation and enforcement of its Emergency Temporary Standard (ETS) on mandatory COVID vaccination and testing in the workplace.
Under the ETS, employers with more than 100 employees were given until Jan. 4to comply with President Biden’s COVID vaccine mandate.
However, a Nov. 12 ruling by the 5th Circuit Court of Appeals barred OSHA from enforcing the ETS “pending adequate judicial review” of a motion for permanent injunction.
OSHA’s latest action does not affect a separate directive from the Centers for Medicare & Medicaid Services requiring employees of medical facilities to be vaccinated by Dec. 6.
In a statement Tuesday, OSHA said:
“The court ordered that OSHA take no steps to implement or enforce the ETS until further court order. While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
In its Nov. 12 22-page ruling, the court called the Biden administration’s mandate “fatally flawed” and said OSHA should “take no steps to implement or enforce the mandate until further court order.”
The court said the mandate fails to consider that the ongoing threat of COVID is more dangerous to some employees than others.
According to the ruling:
“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.”
“This court order must be obeyed, and OSHA has apparently indicated it will,” said Ray Flores, Children’s Health Defense legal counsel. “However, I have not seen this news trickle down to employers, who to my knowledge have not issued widespread pauses on company mandates.”
No mainstream media outlets were reporting OSHA’s news about the suspension at the time this article was published.
The case against the Biden administration was brought by a variety of entities, ranging from state attorneys general (including Texas, Mississippi and Utah), American Family Association and multiple businesses and individuals.
As The Defender reported Tuesday, there are dozens of lawsuits making their way through the courts challenging the mandates on behalf of teachers, healthcare workers, police, firefighters and more.
A federal judicial panel on Tuesday assigned at least 34 of those lawsuits — including the one in the 5th Circuit Court of Appeals that resulted in OSHA suspending its ETS — to an appeals court in Cincinnati, The New York Times reported.
According to the Times:
“A court clerk for the U.S. Judicial Panel on Multidistrict Litigation randomly selected the Court of Appeals for the 6th Circuit by drawing from a drum containing entries for the twelve regional courts of appeal, each of which has at least one related case pending. The procedure can be used to consolidate cases that are all raising the same issue.
“While simplifying the legal dispute, the step also had the effect of removing the matter from the Court of Appeals for the 5th Circuit in New Orleans. This month, a three-judge panel there had blocked the government from moving forward with the rule — declaring that it “grossly exceeds” the authority of the occupational safety agency that issued it.”
According to Reuters, OSHA has issued 10 emergency standards in its 50-year history. Of the six challenged in court, only one survived intact.
‘Why I’m Not Vaccinated’: Journalist Makes Her Case in Newsweek Op-Ed
In an opinion piece published Monday in Newsweek, journalist and political commentator Lisa Boothe outlined the reasons she won’t get the COVID vaccine, pleading for a little “common sense and bodily autonomy.”
In an opinion piece published Monday in Newsweek, journalist and political commentator Lisa Boothe outlined the reasons she won’t get the COVID vaccine.
“In a sane society, a personal decision [to not get vaccinated] would not warrant a column, or even an explanation,” Boothe wrote. “But we do not live in a sane society. As a healthy 36-year-old woman, COVID-19 does not pose a statistically meaningful threat to my life. I have a 99.97 percent chance of survival.”
Boothe questioned the policy of testing only the unvaccinated “when it is now clear the vaccinated are also spreading COVID.”
She also asked why natural immunity is being ignored and denied relevance “despite over 100 research studies affirm[ing] its effectiveness.”
Boothe noted many Americans are unaware of the actual risk posed by COVID. She pointed to a Gallup poll showing 41% of Democrats believed the unvaccinated have an over-50% risk of hospitalization, but according to Gallup, the risk is actually 0.89%.
Boothe also highlighted how President Biden originally told the American people “you’re not going to get COVID if you have these vaccinations,” despiteCenters for Disease Control and Prevention (CDC) Director Dr. Rochelle Walensky’s admission that “vaccinated people infected with Delta can transmit the virus,” and the “vaccines can no longer prevent transmission.”
Boothe questioned how effective the vaccines are at preventing COVID death. She referenced how former CDC director and now senior advisor to Maryland Gov. Larry Hogan, Dr. Robert Redfield, said 40% of the recent COVID deaths in the state of Maryland were among the fully vaccinated. In Vermont, 76% of COVID deaths in September were among the fully vaccinated, Boothe noted.
She also questioned the usefulness of worker mandates at a time when America faces a worker shortage and a supply-chain crisis.
“Vaccine mandates in cities like New York have already shut down 26 firehouses due to staff shortages,” Boothe wrote. “One hospital in upstate New York had to stop delivering babies due to too many maternity workers resigning over the mandate.”
Boothe ended with this: “I am praying the rest of the country wakes up from this psychosis that has taken over. Is it too much to ask for a little common sense and bodily autonomy?”