ALERT Federal Court of Appeals just issued a temporary halt to Biden’s vaccine mandate, Texas Governor Abbott announces.

[jward]

Josh Hammer @josh_hammer Opinion ed. @Newsweek , fellow http://burke.foundation, syndicated columnist, contributing ed. @AnchoringTruths , team @The_IAP , board @AmMomentOrg , alum @ClaremontInst . Miami, FLcreators.com/author/josh-ha… Joined May 2009 2,000 Following 75.8K Followers

A few quick thoughts about the Biden administration's recent legal argument in the Fifth Circuit (link below), in defense of the OSHA vaccine mandate.

In short, it's...unconvincing. Time for a thread.
politico.com/f/?id=0000017d…

Statutorily, OSHA can issue an "emergency temporary standard" if it determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful."

The key words here are "employees" (i.e., plural) and "grave danger."

The use of "employees" indicates Congress had in mind the sort of ubiquitous workplace hazards that affect, well, everyone. Think of asbestos, lead in water pipes, that sort of thing.

The point is the statute does not say, "some high-risk employees." It simply says "employees."

But we know COVID does not equally affect all "employees." First, mitigating the risk of getting COVID and mitigating the effects of COVID even if getting it is the entire point of the vax. Second, we know COVID disproportionately affects the elderly, the immunocompromised, etc.

It defies both basic logic and basic reading comprehension to pretend that all workplace "employees," in the abstract, are equally affected by the risk of catching COVID as they are by asbestos or lead in water pipes. That is nonsense.

The Biden administration tries to get around this, in part, by ignoring that basic linguistic point and instead focusing on the "grave danger" COVID allegedly poses to unvaccinated workers, specifically.

This is also problematic.

It is problematic for the very simple reason that we can *conservatively* estimate the national survival rate for COVID to be 98-99%.

(It is orders of magnitude higher for those who are vaccinated.)


About 99.999% of fully vaccinated Americans have not had a deadly Covid-19 breakthrough case, CDC data shows More than 99.99% of people fully vaccinated against Covid-19 have not had a breakthrough case resulting in hospitalization or death, according to the latest data from the US Centers for Disease Contro… About 99.999% of fully vaccinated Americans have not had a deadly Covid-19 breakthrough case, CDC data shows

But even holding aside the vaxxed and focusing simply on the unvaxxed, as the Biden administration purports to do, implementing a sweeping policy of this nature to address an alleged "grave danger" with a 98-99% survival rate simply does not pass the laugh test.

The overarching idea here is to unilaterally implement a national policy, affecting all large-employer "employees," to mitigate what is truly a "grave danger" for a fractionally tiny proportion of the populace.

To make a crass torts law analogy, it's treating everyone as an "eggshell skull" plaintiff. It's massively over-inclusive.


Eggshell Skull Rule Eggshell Skull Rule

Most people for whom COVID truly is a "grave danger"—i.e., the elderly, the immunocompromised, etc.—have the self-awareness to know that it is a danger to them. They take prudent and reasonable risk-mitigation measures, accordingly—as they should.

We can analogize to a peanut allergy (mixed data, but roughly 1-2% of U.S. population), which can also be deadly. Those with peanut allergies also take prudent risk-mitigation measures: They avoid peanuts, they carry EpiPens, etc.

Should OSHA ban all peanuts from the workplace?

In summary, the Fifth Circuit's staying of the OSHA mandate was correct. And the Biden administration's legal logic here should unnerve us all.

• • •

Thread by @josh_hammer on Thread Reader App

Thread by @josh_hammer: A few quick thoughts about the Biden administration's recent legal argument in the Fifth Circuit (link below), in defense of the OSHA vaccine mandate. In short, it's...unconvincing. Time for...…

threadreaderapp.com

 

[CaryC]

Statutorily, OSHA can issue an "emergency temporary standard" if it determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful."

IMHO that would mean substances produced by the company, and not other individuals.

The difference IMHO is that if someone came to work with the flu and I got the flu, then the company letting that person come to work with the flu/cold put me in danger and I could sue the company. Or any other spreadable disease.

That line of thinking has never been true. Even under OSHA rules.

Now if I went to work in a coal mine and got black lung, due to inappropriate safety measures, then that would apply. Or got an arm cut off due to the removal of safety guards.

I don't know all the rules for blood born pathogens, other than any little blood spill, must be immediately treated and cleaned to prevent so as not let anyone come in contact with a blood born disease. However, the company doesn't make everyone in the company take meds or shots to prevent them from getting a blood born disease before they come in contact with it.

So this ruling by OSHA and Biden is reverse thinking. No jails = no crime

 

[Mark D]

Statutorily, OSHA can issue an "emergency temporary standard" if it determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful."

The key words here are "employees" (i.e., plural) and "grave danger."

The use of "employees" indicates Congress had in mind the sort of ubiquitous workplace hazards that affect, well, everyone. Think of asbestos, lead in water pipes, that sort of thing.

The point is the statute does not say, "some high-risk employees." It simply says "employees."

But we know COVID does not equally affect all "employees." First, mitigating the risk of getting COVID and mitigating the effects of COVID even if getting it is the entire point of the vax. Second, we know COVID disproportionately affects the elderly, the immunocompromised, etc.

It defies both basic logic and basic reading comprehension to pretend that all workplace "employees," in the abstract, are equally affected by the risk of catching COVID as they are by asbestos or lead in water pipes. That is nonsense.

Additionally, there is no provision for "employees" who have already contracted and recovered from COVID; they have been removed from the "risk" category. The same thing can't be said about workplace exposure to something like Cyanide/Chlorine/Phosgene, which you can't be inoculated against...

"Hi, my name is Mark D, and I'm chock-full of COVID Antibodies... LOL, I have a far more comprehensive immune suite than you poor folks who took the Jab do."

As opposed to:

"This is Mark D. He tried to inoculate himself with Phosgene. Mark is dead... See how he is holding the Earth down?"

 

[jward]

Whistleblowers to play key role in enforcing Biden vaccine rule


November 9, 2021 / 5:21 PM / CBS/AP





To enforce President Joe Biden's new COVID-19 vaccine regulation, the Labor Department is going to need a lot of help. Yet its Occupational Safety and Health Administration (OSHA) doesn't have nearly enough workplace safety inspectors to do the job.


The 490-page regulation will cover American businesses with at least 100 workers, or about 84 million employees in all. So the government will rely upon a corps of informers to identify violations of the order: Employees who will presumably be concerned enough to turn in their own employers if their co-workers go unvaccinated or fail to undergo weekly tests to show they're virus-free.

What's not known is just how many employees will be willing to accept some risk to themselves — or their job security — for blowing the whistle on their own employers. Without them, though, experts say the government would find it harder to achieve its goal of requiring tens of millions of workers at large businesses to be fully vaccinated by January 4 or be tested weekly and wear a mask on the job.



"No army" of inspectors
"There is no army of OSHA inspectors that is going to be knocking on employers door or even calling them," said Debbie Berkowitz, a former OSHA chief of staff who is a fellow at Georgetown University's Kalmanovitz Initiative for Labor and the Working Poor. "They're going to rely on workers and their union representatives to file complaints where the company is totally flouting the law.''

Under the regulation, businesses must maintain records on workers' vaccination statuses. But for workplaces where employees aren't required to be vaccinated, workers will need to get weekly tests and wear masks.

OSHA said it plans to check on compliance with the latter by doing spot-checks of businesses, and will also rely on complaints the agency receives about businesses that aren't following the regulation.

"We will have our staff available and responsive to complaints, which is a No. 1 way we hear about problems in a workplace," said Jim Frederick, the acting chief of OSHA, on a conference call with reporters. He also said the agency will focus on job sites "where workers need assistance to have a safe and healthy workplace."


"That typically comes through in the form of a complaint," Frederick added.



Critics warn that whistleblowers have often faced retaliation from their employers and that OSHA has offered little protection when they do.

The new rule, which Biden announced last week, is the administration's most far-reaching step yet to prod more Americans to get a vaccine that has been widely available since early spring. The order will cover an estimated 84 million employees.

The president called the move necessary to combat an outbreak that has killed 750,000 Americans and that continues to spread. Companies that fail to comply will face fines of nearly $14,000 per "serious'' violation. Employers found to be "willful'' or repeat violators would be subject to fines of up to ten times that amount.

But the regulation has run into furious opposition from leaders of mainly Republican-led states who have condemned the plan as an unlawful case of federal overreach and who immediately challenged the vaccine-or-test requirements in court.

On Saturday, the Biden administration endured a setback when a federal appeals court in New Orleans temporarily halted the order, saying it posed "grave statutory and constitutional issues."

Enforcement challenges
Should the regulation survive its legal challenges, though, the task of enforcing it would fall on OSHA, the small Labor Department agency that was established 50 years ago to police workplace safety and protect workers from such dangers as toxic chemicals, rickety ladders and cave-ins at construction sites.


OSHA has jurisdiction in 29 states. Other states, including California and Michigan, have their own federally approved workplace safety agencies. These states will have an additional month — until early February — to adopt their own version of the COVID-19 rule, equal to or tougher than OSHA's.

For a task as enormous as enforcing the new vaccine order, OSHA and its state "partners'' are stretched thin. Just 1,850 inspectors will oversee 130 million workers at 8 million job sites. So the agencies must rely on whistleblowers.



"They have inspectors but they don't have enough to do extensive pre-emptive investigations of employers," said Julie Vanneman, an attorney with Dentons Cohen & Grigsby, where she works on environmental and health and safety matters. "However, OSHA tends to respond quite throughly to whistleblower complaints."

OSHA urges workers to first bring unsafe or unhealthy working conditions to the attention of their employers "if possible.'' Employees could also file a confidential safety complaint with OSHA or have a case filed by a representative, such as a lawyer, a union representative or a member of the clergy. But they have no right to sue their employer in court for federal safety violations.

It starts with a complaint
Typically, 20% to 25% of OSHA inspections originate with a complaint.

"You fill out a form or somebody fills out a form for you," said Berkowitz, the former OSHA chief of staff. "And that's all workers have. If OSHA decides not to inspect, that's it. Or if OSHA inspects but decides not to cite the employer, that's it. ... So it's a pretty weak law.''

Only OSHA can bring cases over violations of the Occupational Safety and Health Act of 1970, the law that is meant to provide safe workplaces. Going outside OSHA to sue employers for negligence is all but impossible, say Berkowitz and other worker advocates.


State worker compensation programs — which reimburse injured workers for medical costs and lost wages and provide death benefits to survivors of those killed — include no-fault provisions that block most lawsuits.

Even sounding the alarm can be risky.

"Technically," Berkowitz said, "the law says that companies can't retaliate against a worker for waging a health and safety issue or filing an OSHA complaint or even reporting an injury. But retaliation is rampant.''

OSHA can pursue employers who punish workers for speaking out against unsafe working conditions. Last month, for example, the agency sued a luxury car dealer in Austin, Texas, that it said fired an employee who had warned co-workers about potential coronavirus hazards in the workplace.

Whistleblower concerns
But in a report co-written by Berkowitz, the National Employment Law Project, which advocates for worker rights, found that OSHA dismissed more than half the COVID-related complaints of retaliation it received from whistleblowers without conducting an investigation. Just 2% of complaints were resolved in the five-month period last year that the law project studied. Workers have just 30 days to file an OSHA complaint over retaliation.

"OSHA needs to improve its handling of whistleblower complaints,'' the Labor Department's Inspector General, its internal watchdog, concluded last year. "When OSHA fails to respond in a timely manner, it could leave workers to suffer emotionally and financially, and may also lead to the erosion of key evidence and witnesses.''

Still, most companies are considered likely to comply with the COVID-19 regulation, as they mostly do with other OSHA rules. Some employers were likely relieved: They may have wanted to require inoculations on their own but worried that they'd alienate anti-vaccine workers and possibly lose them to employers that didn't require vaccinations.


"Most employers — they're law-abiding,'' says David Michaels, a former OSHA chief who is an epidemiologist and professor of public health at George Washington University. "They're trying to make sure that they meet the requirements of every law and regulation.... Now OSHA will follow up. They'll respond to complaints. They'll do spot checks. They'll issue citations and fines, and they'll make a big deal of those" to discourage other potential violators.

Whistleblowers to play key role in enforcing Biden vaccine rule

OSHA is counting on employees to notify the safety agency if businesses violate the new federal COVID-19 order.

www.cbsnews.com

 

[jward]

Disclose.tv
@disclosetv

JUST IN - U.S. federal appeals court affirms hold on Biden's vaccine mandate, calls it "staggeringly overboard".

6:15 PM · Nov 12, 2021·Twitter Web App


Biden's vaccine mandate "raises serious constitutional concerns" and "likely exceeds the federal government’s authority."

 

[desertvet2]

If the executive disregards the judicial, and the legislative and judicial disregards the citizens, amd the executive makes rules for all... then the citizens shall disregard them all?

I am confused...they all seem to just do whatever they want.

 

[jward]

Federal Appeals Court Affirms Hold on Biden's Divisive Vax Mandate

(Dreamstime)

Friday, 12 November 2021 07:32 PM



A U.S. appeals court on Friday upheld its decision to put on hold an order by President Joe Biden for companies with 100 workers or more to require COVID-19 vaccines, rejecting a challenge by his administration.
A three-member panel of the 5th U.S. Circuit Court of Appeals in New Orleans affirmed its ruling despite the Biden administration's position that halting implementation of the vaccine mandate could lead to dozens or even hundreds of deaths.

"The mandate is staggeringly overbroad," the opinion said.

"The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers)," Circuit Court Judge Kurt Engelhardt wrote for the panel.
Vaccine mandates are deeply controversial in the United States. Supporters say they are a must to put an end to the nearly two-year coronavirus pandemic, while opponents argue they violate the U.S. Constitution and curb individual liberty. They also say the mandate threatens to diminish a workforce already grappling with labor shortfalls and major kinks in supply chains.

The Fifth Circuit judges appeared to agree with the opponents.
"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," Engelhardt wrote.
The rule was issued by the Occupational Safety and Health Administration (OSHA) and mandates that businesses with at least 100 employees require staff to get vaccinated or face weekly tests and face mask requirements.
White House officials had no immediate comment on the ruling, which was hailed as a victory by Texas Attorney General Ken Paxton. Texas joined other U.S. states, as well as private employers and religious organizations, in legal challenges to the order.

"Citing Texas’s 'compelling argument' the 5th Circuit has stayed OSHA’s unconstitutional and illegal private-business vaccine mandate," Paxton said on Twitter.
Biden imposed the requirement in September, telling Americans that "our patience is wearing thin" with those refusing to get inoculated.



© 2021 Thomson/Reuters. All rights reserved.

Federal Appeals Court Affirms Hold on Biden's Divisive Vax Mandate

A U.S. appeals court on Friday affirmed its decision to put on hold an order by President Joe Biden for companies with 100 workers or more to require COVID-19 vaccines, rejecting a challenge by his administration.The 5th U.S. Circuit Court of Appeals in New Orleans upheld...

www.newsmax.com

 

[thompson]

Appeals Court Affirms Injunction Against Joe Biden's OSHA Vaccine Mandate - Full 22-Page Ruling - The Last Refuge

The U.S. 5th Circuit Court of Appeals in New Orleans has ruled against the Joe Biden OSHA vaccine mandate calling it “staggeringly overbroad.” [The 22-page ruling and opinion is AVAILABLE HERE] The three judge panel upheld its previous decision to put a stay on the order by Joe Biden against...

theconservativetreehouse.com

Appeals Court Affirms Injunction Against Joe Biden’s OSHA Vaccine Mandate – Full 22-Page Ruling

November 12, 2021 | Sundance | 191 Comments

The U.S. 5th Circuit Court of Appeals in New Orleans has ruled against the Joe Biden OSHA vaccine mandate calling it “staggeringly overbroad.”

[The 22-page ruling and opinion is AVAILABLE HERE]

The three judge panel upheld its previous decision to put a stay on the order by Joe Biden against companies with 100 workers or more. The Biden administration had instructed the Department of Labor to require COVID-19 vaccines. The Biden administration’s effort to use an Emergency Temporary Standard OHSA rule was rejected by the court citing numerous flaws in their review and ruling:

(Continue reading via pdf)

“The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers),” Circuit Court Judge Kurt Engelhardt wrote for the panel.

 

[Nowski]

Thank The Most High God, for the U.S 5th Circuit Court of Appeals.

Like that pic of Brandon. A bad day for him, is a good day for liberty.
It comes down to this IMOH. We are Americans, and no, we do not
have to do as you tell us, you communist basterd.

Now there needs to be an attack by the states, on the pharmaceutical tyrants.
They are the fault, of a lot of the COVID-19 apocalypse that has practically
destroyed the ZUSA, and most of the Western nations.

Giving COVID-19 jabs to little babies. Damn them, damn them to lowest levels
of the Devil's HELL. Nothing pisses me off more, than someone hurting a
defenseless little baby.

Looking forward to The COVID-19 Nuremberg Trials. A guilty verdict must have
the exact same sentence. They want to cull the population, start with the ones
pushing COVID-19, and especially those pushing the death clot shots.

Please be safe everyone.

Regards to all.

Nowski

 

[jward]

The White House's Twitter Blather Bites Them as the 5th Circuit Slaps Down Biden's Vaccine Mandate

By Bonchie | Nov 13, 2021 10:15 AM ET

(AP Photo/Jacquelyn Martin)

As RedState reported, the 5th Circuit Court of Appeals refused to lift the stay on Joe Biden’s vaccine mandate for private businesses last night. That came after the court gave the administration a week to respond to the challenge that the “emergency” OSHA regulation produces “grave” constitutional questions. Obviously, the judges were not swayed.


But while the decision itself is the biggest news here, inside the court’s decision is something that’s just amazing. Let me set it up first, though.

Ronald Klain, who serves as Biden’s chief of staff, has this uncontrollable habit of retweeting wildly partisan messages. That’s most often manifested itself in him pushing tweets from crazed Washington Post columnist Jennifer Rubin. But he branches out, and in one instance he retweeted MSNBC’s Stephanie Ruhle, another rabid liberal who routinely puts out terrible takes.

Well, the 5th Circuit actually cited that instance as evidence against the White House.

5th Cir. says retweets are endorsements. pic.twitter.com/jOK9YcWiPu
— Brad Heath (@bradheath) November 13, 2021

That produced lots of gnashing of teeth. How could a court possibly use tweets as a partial basis for a ruling? Why, that would be absolutely horrendous and unheard of, right? Tweets and retweets are not to be taken seriously, after all.

Glad the Fifth Circuit is doing, you know, LEGAL research? Or is in the Constitution that @SRuhle ‘s off the cuff comments are stare decisis?
— Jeff Leon (@jeffaleon) November 13, 2021

The 5th circuit is sufficient basis for court reform.
— Edward Utyro (@EUtyro) November 13, 2021

I note the whining about the court’s choice to include Klain’s retweet in their decision, because I find the hypocrisy to be absolutely hilarious. Remember, this is the same left that spent years insisting that Donald Trump’s retweets and tweets constituted obstruction of justice. We had an entire special counsel where Robert Mueller’s final report cited dozens of Trump tweets. Yet, when the tables turn, suddenly it’s out of bounds to cite Twitter activity.

Of course, the court is also correct in its assessment, at least in my view. Klain clearly only retweets things he agrees with, and the mandate, from the beginning, has represented a dishonest, unnecessary workaround to do something that is likely unconstitutional. An emergency rule that takes two months to formulate and another two months to go into effect? Give us all a break, never mind that the vaccines don’t stop people from spreading COVID-19, which blows up the entire justification for mandates and providing proof of vaccination.


Still, it’s funny to see something the left hung their hat on for four years now be denigrated because it’s being used against them.

The White House's Twitter Blather Bites Them as the 5th Circuit Slaps Down Biden's Vaccine Mandate

This is just too perfect.

redstate.com

 

[Profit of Doom]

The administration claimed that pausing the requirements “would likely cause dozens or even hundreds of lives per day” as the vaccine spreads.

 

[Profit of Doom]

Statutorily, OSHA can issue an "emergency temporary standard" if it determines that "employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful."

Let’s prove the vaccine is toxic or physically harmful.

 

[TheSearcher]

"The administration claimed that pausing the requirements “would likely cause dozens or even hundreds of lives per day” as the vaccine spreads."

Is that literally what they wrote? If so, that's one hell of a Freudian slip.

 

[CTFIREBATTCHIEF]

I followed the link and read the courts decision. All I have to say is that they slapped pudding cup HARD across the face with their ruling. What the Judges say about the "mandate" and the total overreach of biden and company is outstanding! It truly is worth the read and explains their position perfectly. To me, it all makes sense. OSHA is WAY outta line on this one and pudding cup is WAY over his head. FUG him and his "our patience is wearing thin" line.

Joey, as far as patience wearing thin..

Hold our beer and watch this. numnutz

 

[Knoxville's Joker]

I followed the link and read the courts decision. All I have to say is that they slapped pudding cup HARD across the face with their ruling. What the Judges say about the "mandate" and the total overreach of biden and company is outstanding! It truly is worth the read and explains their position perfectly. To me, it all makes sense. OSHA is WAY outta line on this one and pudding cup is WAY over his head. FUG him and his "our patience is wearing thin" line.

Joey, as far as patience wearing thin..

Hold our beer and watch this. numnutz

The supremes will pretty much say the same thing. Now if they severely admonish OSHA and CMS for overreach this will kill mandates rather quickly and put a lot of egg on faces...

 

[thompson]

DOJ Says It Will Not Back Down from Challenging Vaccine Mandate Court Ruling

townhall.com

DOJ Says It Will Not Back Down from Challenging Vaccine Mandate Court Ruling

Landon Mion
Posted: Nov 13, 2021 4:50 PM

The Department of Justice said that it will "vigorously defend" the Biden administration's vaccine mandate for businesses, which the Occupational Safety and Health Administration was expecting to enforce starting Jan. 4 before an appeals court blocked the requirement from taking effect.

After the Fifth Circuit Court of Appeals on Friday upheld a stay on the OSHA order, which would have mandated that all employers with at least 100 employees require their workers to get vaccinated or undergo weekly coronavirus testing, a DOJ spokesperson said the Biden administration would challenge the ruling.

"This decision is just the beginning of the process for review of this important OSHA standard," a spokesperson told Fox News. "The Department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review."

The appeals court granted an emergency stay on the OSHA orders last week, temporarily freezing them and thus, preventing them from going into effect.

The Biden administration then argued that the court’s ruling could result in the loss of "dozens or even hundreds of lives per day."

"With the reopening of workplaces and the emergence of the highly transmissible Delta variant, the threat to workers is ongoing and overwhelming," the administration's lawyers argued in court filings.

However, Judge Kurt Engelhardt pointed out that the stay was in the best interest of the public, citing economic uncertainty and opposition to a sweeping vaccine mandate.

"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," he wrote.

At least 27 states have filed legal challenges in at least six federal appeals courts following the release of OSHA's rules on Nov. 4, which came after President Joe Biden announced plans to implement the vaccine mandate back in September through an executive order.

When announcing his order, the president expressed frustration with those who remain unvaccinated, saying that "our patience is wearing thin."

According to data from the Center for Disease Control and Prevention, around 59 percent of Americans are fully vaccinated against COVID-19 while 68 percent have received at least one dose.

 

[Snettrecker]

There's a lot of people that I know, friends or patients from the er, that have stated they'll never take the second shot because of the side effects they got from the first.

from the Center for Disease Control and Prevention, around 59 percent of Americans are fully vaccinated against COVID-19 while 68 percent have received at least one dose.

 

[thompson]

The Fifth Circuit Slapping Down Biden's Illegal Vaccine Mandate Is Meaningless in the Face of a Lawless Presidency

A court injunction doesn't matter when no one pays any attention to it.

redstate.com

The Fifth Circuit Slapping Down Biden's Illegal Vaccine Mandate Is Meaningless in the Face of a Lawless Presidency

By streiff | Nov 13, 2021 5:00 PM ET

Earlier this month, the White House rolled out a 490-page regulation designed to coerce and bully people who have not received the so-called COVID vaccine into choosing between bodily autonomy and being employed.

Less than a week after a stump-broken OSHA announced that rule, it was the subject of a nationwide injunction by the Fifth Circuit (see BREAKING: Court Decision in on Biden’s OSHA Mandate). The Fifth Circuit followed up their temporary injunction (BREAKING: Federal Appeals Court Denies Biden Admin Request to Lift Stay on Vaccine Mandate) with a permanent one that didn’t treat the mandate as anything but a political stunt (5th Circuit Takes Biden to the Woodshed With the Scolding He Deserves).

This is great as far as it goes. It is always nice to see federal judges protect civil liberties and reign in a ravenous federal bureaucracy, especially when the employees are given a choice between forfeiting their livelihoods or accepting “medical” treatment that many perceive as having an unacceptable level of risk.

The sad fact is that the Biden bunch are telling businesses to ignore court orders that interfere with the mandate.

Shortly after the Fifth Circuit issued its nationwide injunction, you have this from White House press secretary Karine Jean-Pierre. <--- Click on the link to view the video. It can't be embedded.

“We think people should not wait. We say do not wait to take actions that will keep your workplace safe. It is important and critical to do and waiting to get more people vaccinated will lead to more outbreaks and sickness,” Jean-Pierre said at the daily White House press briefing.

“This is about keeping people in the workplace safe. And so what we’re seeing is more businesses and school closures and more lost jobs that keep us keep us stuck in a pandemic that we’re trying to end.”

She added: “We’re trying to get past this pandemic and we know a way to do that is to get people vaccinated. So people should not wait. They should continue to go move forward and make sure that they’re getting their workplace vaccinated.”

That is exactly what is happening.

As Phil Kerpen so deftly put it:

https://twitter.com/i/web/status/1457844387304648707

View: https://twitter.com/kerpen/status/1457844387304648707?s=20


Here is Dan Bongino’s take:

View: https://www.youtube.com/watch?v=9EDGKzmmvY0

5:10 run time

Large businesses know they can’t afford to disregard Biden’s directive no matter what the courts say about the mandate. They know that regulators will be sniffing around if they show they aren’t part of the team. They know that they will be quietly cut off from federal contracts.

In short, Biden is doing something that Trump was always accused of planning by never quite got around to doing. Biden is using the federal government’s power to force businesses to comply with a clearly illegal and unconstitutional vaccine mandate, one that a federal circuit has struck down, or else.

Look for this pattern of behavior to continue as Biden’s ability to enact policy disappears when the off-year elections crank up next year. He’s going to have to show something to his base or face a total blowout (unlike the one he allegedly had in the Vatican, this will be figurative rather than literal) in 2022 and devote his last two years will be spent fending off Congressional investigations. He might not be able to avoid this fate, but his only chance is to play the tough guy from Scranton who is doing the right thing despite those dastardly Republicans.

 

[workhorse]

Just maybe joe thinks he can use osha to mandate this to all employees because he sees us all as “employees “ of the government. We work and live to be taxed and do what we are directed to do by our employer. Didn’t the court recently state. If someone tells you what to do and when to do it you are not a contractor but an employee? Giving us all refunds,tax breaks,and stimulus money would be considered pay. Sorry if this seems weird or a stretch just trying to understand DC.

 

[TammyinWI]

Whistleblowers, eh? I think that is the wrong word for that.

 

[Knoxville's Joker]

Thing is once too many are tired of the malarkey they will attack those attempting to enforce such things.

 

[pinkelsteinsmom]

If the executive disregards the judicial, and the legislative and judicial disregards the citizens, amd the executive makes rules for all... then the citizens shall disregard them all?

I am confused...they all seem to just do whatever they want.

The high court ruling was placed in a small post on page three of KOMO news in Shitattle yesterday. Today, a federal judge here in WA just ruled the vax mandate for Port workers will stand!!!! Total in your face phuch u from the rogue commie judges.

 

[jward]

November 13, 2021
The 5th Circuit's brilliant opinion staying OSHA's vaccine mandate

By Andrea Widburg


Despite (or perhaps because of) a long career spent reading judicial decisions, I really hate reading cases. A stellar exception arose on Friday, when the Fifth Circuit issued its decision in BST Holdings, L.L.C. et al. v. OSHA, reaffirming the initial stay it granted when multiple entities and individuals challenged OSHA's recently issued vaccine mandate. In one brutal paragraph after another, the Court rips apart the mandate, citing law, facts, OSHA precedent, and even a Ron Klain tweet. It's a tour de force that makes it unlikely that any halfway honest court can or would resuscitate the mandate or that either OSHA or even Congress could try again.

There are a few dates you should know: in June 2020, when fear about COVID was at a peak, OSHA "reasonably determined" that an emergency temporary standard (ETS) was unnecessary. Over a year later, on September 9, 2021, Biden announced that he was going to impose a national vaccine mandate. That same day, Ron Klain retweeted a Stephanie Ruhle tweet stating that an OSHA vaccine mandate "is the ultimate work-around for the Federal govt to require vaccinations." Finally, almost two months later, on November 5, OSHA finally got around to promulgating the ETS.
And there are two facts you need to know: Congress created OSHA

to assure Americans 'safe and healthful working conditions and to preserve our human resources.' ... It 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. [p. 6, citations and footnote omitted.]

OSHA's authority regarding issuing an ETS is also extremely narrow, requiring a grave danger from exposure to hazardous substances, toxic agents, or new hazards, all of which require urgent intervention. ETSes are "'an 'unusual response' to 'exceptional circumstances'" (p. 8, citations omitted). The legal standard is that this "extraordinary power" must be "delicately exercised" and only in "limited situations" (ibid.).

Image: Hard hat from freeiconspng; syringe from Piqsels.

To meet the legal requirements, OSHA would have had to act with incredible speed to issue a narrowly crafted mandate drilling into the places with the highest risk. (Perhaps targeting the New York subways or American meatpacking plants in Spring 2020.) Instead, notes the court, the mandate came almost two years into the virus's depredations and almost two long months after the president declared there was an emergency requiring a mandate. Moreover:

[R]ather 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. (p. 8)

In another gem of a paragraph, the Court describes the mandate as "fatally flawed on its own terms." Thus:

[T]he 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, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) 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). (p. 6)

And of course, there's chief of staff Klain's retweet, which the Court suggests is an admission that using OSHA was a deliberate attempt to circumvent the president's constitutional inability to issue such a mandate.

The Court touches upon a few other things, including the fact that COVID's risks are very uneven, depending on a person's age, general health, and immunity, and OSHA's past statements about its lack of power to make mandates for infectious diseases.
The Court also notes a couple of serious constitutional problems. While states have vast powers over public health, the Commerce Clause means that the federal government does not: "A person's choice to remain unvaccinated and forgo regular testing is noneconomic inactivity," and therefore within the states', not the federal government's, purview. Likewise, Separation of Powers principles mean that an agency operating under the Executive cannot exceed the narrow mandate Congress gave it.

With regard to this last point, the Court gave a nod to the Supreme Court's decision earlier this year holding that the CDC may not make housing policy by issuing eviction moratoriums. It noted that Congress can only give away so much of its authority, for "health agencies do not make housing policy, and occupational safety administrations do not make health policy" (p. 20).
There's much more in the opinion, and it's written almost entirely in intelligible English, so I suggest you may enjoy reading it yourself.

(Note: This post has been updated to clarify confusing language regarding Stephanie Ruhle's tweet.)
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The 5th Circuit's brilliant opinion staying OSHA's vaccine mandate

Despite (or perhaps because of) a long career spent reading judicial decisions, I really hate reading cases. A stellar exception arose on Friday, when the Fifth Circuit issued its decision in BST Holdings, L.L.C. et al. v. OSHA, reaff...

www.americanthinker.com

 

[jward]

Disclose.tv
@disclosetv
3h

JUST IN - Sixth Circuit to handle the consolidated case challenging Biden's nationwide vaccine mandate.

Brian Coleman
@bric882009

Replying to
@disclosetv

Sixth Circuit (Mich., Ohio, Ky., Tenn.): This circuit has eleven Rs and five Ds, and three of the judges were appointed by Donald Trump. Like the Fifth Circuit, it's an oasis of conservatism.

3:20 PM · Nov 16, 2021·Twitter for iPad

 

[jward]

Elizabeth M.Economou
@EMECONOMOU

Breaking - Per The National Law Review: #OSHA has announced it is suspending all implementation & enforcement efforts related to the Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccination and testing in the workplace.
@AAPSonline
@janehughesmd
@drcraigwax
@btysonmd

10:30 PM · Nov 16, 2021·Twitter Web App

 

[jward]

California Pauses Plans for Its Own Covid-19 Shot-or-Test Rule

Nov. 16, 2021, 9:21 AM
California regulators have put on hold plans to consider adopting a state version of federal OSHA’s Covid-19 vaccination or test mandate.
The state Occupational Safety and Health Standards Board announced late Monday that because the federal standard has been stayed by a federal court, the board wouldn’t take up the state rule at its meeting set for Thursday. The board hadn’t yet released the text of the possible California standard.
The board cited the order from the U.S. Court of Appeals for the Fifth Circuit on Nov. 12 that federal OSHA “take no steps to implement or enforce” the emergency ...
(Rest behind a paywall_)

California Pauses Plans for Its Own Covid-19 Shot-or-Test Rule

California regulators have put on hold plans to consider adopting a state version of federal OSHA’s Covid-19 vaccination or test mandate.

news.bloomberglaw.com

 

[jward]

Biden Administration in Full Retreat: Federal Vaccine Mandate is Now *Suspended* Due to ‘Onslaught of Legal Challenges’

November 17, 2021
by Kyle Becker

Written by Kyle Becker



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The Biden administration is in full retreat over its unlawful vaccine mandate. After wreaking havoc on the U.S. economy for months by mandating federal contractors and businesses with more than 100 employees force employees to get ‘vaccinated’ for Covid-19, the White House is conceding it needs to suspend the authoritarian policy.
The Occupational Safety and Health Administration announced that it was suspending the federal vaccine mandate’s enforcement:

On Nov. 16, 2021, the federal Occupational Safety and Health Administration (OSHA) announced it is suspending all implementation and enforcement efforts related to the Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccination and testing in the workplace. The announcement follows the Nov. 12, 2021 order from the Fifth Circuit Court of Appeals staying enforcement of the ETS pending a final ruling on its legality. OSHA intends to resume implementation and enforcement of the ETS following litigation, if permitted. This newly stated position immediately impacts employers with 100 or more employees who are not federal contractors or otherwise subject to Centers for Medicare and Medicaid Services’ guidance. Such employers can breathe easier, as they are no longer faced with Dec. 5, 2021 and Jan. 4, 2022 compliance deadlines associated with implementing a vaccine mandate or weekly testing program.

The Republican Party’s official account pointed to an “onslaught of legal challenges” for the reason OSHA is backing off enforcing the policy.

BREAKING: Facing an onslaught of legal challenges, including from the @GOP, the Biden administration is suspending implementation of the vaccine mandate.
— GOP (@GOP) November 17, 2021

It was a bad sign for the ‘mandate’ when it was finally issued by OSHA a month and a half after the White House announced it in September. OSHA subsequently issued an Emergency Temporary Standard (ETS) that the federal courts have ripped to pieces as being entirely ungrounded in the law.
“In the order, the Fifth Circuit accuses the current administration of shoe-horning the desire for a federal vaccine mandate into the best, but ill-fitting, vehicle the administration could find – an OSHA ETS,” the National Law Review notes. “The court points out that OSHA’s authority to establish emergency temporary standards is ‘an extraordinary power that is to be delicately exercised’ and criticizes the ETS vaccine rule as ‘a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces’.”

“The Fifth Circuit questions whether OSHA has adequately shown a ‘grave danger’ warranting the issuance of an ETS and states that it is ‘dubious’ as to whether the rule will pass ‘constitutional muster’,” the legal analysts note.
The appeals court’s language is strikingly adamant that the “mandate” does not even come close to passing constitutional muster.
“If the deficiencies we’ve already covered aren’t enough, other miscellaneous considerations seal the Mandate’s fate. For one, ‘[t]he Agency cannot use its ETS powers as a stop-gap measure,’ but concedes that that is precisely what the Mandate is intended to do here,” the ruling added.

Furthermore, it should be added in addition to the court’s explicit reasoning, the delayed timeline from OSHA itself throws into serious question whether or not the mandate is grounded in the ’emergency powers’ of the executive branch. The United States is nearly two years into the Covid pandemic, and indeed, over 160 million Americans have had Covid-19 and survived it with natural immunity, according to the CDC’s calculations. There is also the issue that OSHA is waiting until ‘after the holidays’ to enforce the mandate, which underscores that the agency is not addressing a true ’emergency.’
Whether or not the federal appeals court gets the last word remains to be seen. However, the judges convincingly put the nail in the coffin for Biden’s federal vaccine mandate in terms of its unconstitutionality.

“It lastly bears noting that the Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits, or at least counsel against adopting OSHA’s broad reading of § 655(c) as a matter of statutory interpretation,” 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,” the ruling states. “A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.” [The court the cited NFIB v. Sebelius (2012) with Chief Justice John Roberts concurring.]

“And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power,” the court continued, adding that precedent had long “settled that it is within the police power of a state to provide for compulsory vaccination.” [Jacobson v. Massachusetts (1905).] “The Mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power.”

“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 ruling continued. “As Judge Duncan points out, the major questions doctrine confirms that the Mandate exceeds the bounds of OSHA’s statutory authority.”
“Accordingly, the petitioners’ challenges to the Mandate show a great likelihood of success on the merits, and this fact weighs critically in favor of a stay,” the court decided. The judges ruled that the failure to grant the stay would cause irreparable harm to the petitioners, as well as affected companies and employees. It adds that the emergency stay is “in the public interest.”

“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,” the court held.
Ultimately, the Court rebuked the mandate because such powers fall within the Legislative Branch, and not the Executive Branch.

“The Constitution vests a limited legislative power in Congress,” the court stated. “For more than a century, Congress has routinely used this power to delegate policymaking specifics and technical details to executive agencies charged with effectuating policy principles Congress lays down.”
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The lawsuit in the Fifth District Court of Appeals, based in New Orleans, is just one of many being brought against the federal vaccine mandate. There are at least thirteen states lining up to formally sue the Biden administration over its illegal decree: Alabama, Arizona, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Utah, Texas and West Virginia.
NOW READ:

OPINION: This article contains commentary which reflects the author's opinion.

Biden Administration in Full Retreat: Federal Vaccine Mandate is Now *Suspended* Due to 'Onslaught of Legal Challenges' - Becker News

"It was a bad sign for the 'mandate' when it was finally issued by OSHA a month and a half after the White House announced it in September"...

beckernews.com