5th Circuit Takes Biden to the Woodshed With the Scolding He Deserves

AP Photo/Evan Vucci

Last night, the 5th Circuit Court of Appeals upheld its stay of the vaccine mandate that the Biden Administration wants to impose on private businesses with more than 100 employees through the use of an OSHA rule.


Last week, they had issued a stay, saying the case posed grave constitutional and statutory questions.

That was an indication that they weren’t going to be looking kindly on the question. But then in the decision to uphold the stay last night, the Court went even further and in more detail chastised the Biden Administration for their actions and mocked their arguments.

In general, the Court noted that when you are imposing OSHA rules on businesses, that power should be “delicately exercised” and only in the emergency situations that require it. So, you are looking to be the least intrusive you can possibly be, while dealing only with a true emergency.

Rather than “delicately exercised,” the court noted the severe imposition that this was to the businesses in this case.

Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.

In issuing a stay, among the things the Court considers is whether the petitioners — the people asking for the stay, in this case, the businesses — would be irreparably harmed if the OSHA rule went into effect before the Court made its decision on the merits in this case. The Court found there really was no question how much this would harm the businesses.


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.

The Court called the mandate both “overinclusive” and “underinclusive,” “staggeringly overbroad,” and basically derided the Biden Administration’s effort to call it an ’emergency’ — when the threat has been going on for two years and OSHA didn’t even get around to making up the text of the rule for two months.

Indeed, 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, 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). 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. And its promulgation grossly exceeds OSHA’s statutory authority.


The Court added that Biden announcing the mandate on September 9, but then not having the OSHA rule go into effect until Jan. 4 — when the situation is supposed to be an “emergency” — also doesn’t exactly withstand scrutiny either. Some emergency.

As we reported earlier and as I predicted would happen on September 10, the Court took note of White House Chief of Staff Ron Klain’s retweet of MSNBC Stephanie Ruhle’s tweet that the OSHA rule was the “ultimate workaround.” The Court looks at such things when they’re trying to evaluate the case.

The 5th Circuit further pointed out that Biden was against mandates before he was for them, and didn’t have any explanation as to why the change was necessary.

It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here….OSHA’s reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.

Finally, the Court pointed out that the petitioners (the businesses) were very likely to prevail against the Biden Administration on constitutional grounds.

While not a decision yet on the merits, it’s clear where they are going. It was a resounding rebuke of Joe Biden and his efforts to skirt the law to impose these mandates on Americans.


Editor’s note: this article was edited for clarity after publication.


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