On Friday, November 12, 2021, the 5th Circuit Court of Appeals issued a stunning rebuke of the recently issued OSHA ETS concerning a mandate requiring that employers of 100 or more employees ensure that their employers are vaccinated against the COVID-19 virus.
In part, the Court said,
“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.” 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. As Judge Duncan points out, the major questions doctrine confirms that the Mandate exceeds the bounds of OSHA’s statutory authority.” “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. Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018).”
“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”22 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.
The Court’s 22-page order is here > https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf