👨⚖️ The Sixth Circuit, in a 2-1 split decision, granted Joe Biden’s motion to dissolve the OSHA Mandate injunction ordered by the Fifth Circuit. Since I’ve already done a bunch of legal analysis for you this week (a snoozer of a post for many readers), I won’t do that to you again. But I’ll make two comments and then explain where it goes next.
First, I’ve noticed you can always tell the court opinions that are going to support the mandates because they ALWAYS uncritically mention the official number of Covid “deaths” in the very first sentence. In this decision, the court said “The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy.”
There you go. A dead giveaway the order is going to be a stinker.
The second point is Judge Larson, writing in dissent, pointed out that the majority’s core rationale was completely made up:
“The majority opinion describes the emergency rule at issue here as permitting employers ‘to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces.’ Maj. Op. at 7. With respect, that was the state of federal law /before/ the rule, not after.
Biden’s mandate lets employers determine for themselves? Please.
So what’s next? The plaintiff states must choose to ask the Sixth Circuit to hear the injunction issue “en banc,” which means ALL judges on the Sixth have to weigh in, or take it straight to the Supreme Court. I like their chances either way. UPDATE: late-breaking twitter reports say the appeal to the Supreme Court has already been made.
People have asked me, “but Jeff, the Supreme Court has been refusing to hear vaccine cases right and left. Why would you be optimistic about this case?”
The answer is simple. The previous cases have asked the Supreme Court to weigh in on STATE law mandates. As we know, the 1905 Jacobson Supreme Court case says vaccine mandates are a matter of STATE LAW. The primacy of state law is a conservative concept — of federalism. So, the Supreme Court has been consistent so far in staying out of state affairs. But the OSHA Mandate is a FEDERAL issue, and also an issue of over-reaching agency powers, of which the Supreme Court has been skeptical for the last couple decades, at least.
So, don’t worry. While there are no guarantees in this business, I think reason and logic and the facts all support a favorable decision from the US Supreme Court. The war goes on.
Source:
- December 18, 2021. Jeff Childers. “☕️ Coffee & Covid ☙ Saturday, December 18, 2021 ☙ BOING BOING 🦠.” ☕️ Coffee & Covid 🦠.
https://www.coffeeandcovid.com/p/-coffee-and-covid-saturday-december-1b8.
Law, Blog.
It will be a couple of days before I can flesh this post out with some further details, but I wanted to make sure that this important case news gets out there.