U.S. Appeals Court Upholds Block on Biden’s OSHA Vaccine Mandate for Private Employers
Alaska, Other States Also Sue to Stop OSHA Vaccine Rules
Posted & Edited By MARY KAUFFMAN
November 13, 2021
In the decision filed November 12, 2021, 5th Circuit Judge Kurt D. Engelhardt wrote (pdf) in the decision: “From economic uncertainty to workplace strife, the mere specter of the mandate has contributed to untold economic upheaval in recent months. Of course, the principles at stake when it comes to the mandate are not reducible to dollars and cents. 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 mandate will likely be heard now by the US Supreme Court. In a posting on FaceBook U.S. Senator Dan Sullivan (R-AK) wrote on November 13th that he as well as the 5th Circuit clearly expect that it will be declared unconstitutional.
Sullivan wrote regarding the decision, "It’s for these exact reasons that I have been fighting the mandate and why I have been respectfully calling on business leaders in Alaska and America to refrain from firing employees until the litigation on the mandate has been fully resolved."
The 5th U.S. Circuit Court of Appeals first 'stayed' the Biden Administration’s COVID-19 vaccine mandate for businesses with 100 or more workers on November 6, 2021. The emergency stay lifts the requirement by the federal Occupational Safety and Health Administration, (OSHA), that workers be vaccinated by Jan. 4 or seek weekly testing and wear face masks at work. The decision stops the mandate from taking effect pending further action by the court.
“I applaud the federal court’s decision to block federal overreach,” said Alaska Governor Mike Dunleavy after the Nov. 6th decision. “It’s an important victory as it validates what states like Alaska have been saying all along–that the recent federal mandate by President Biden to coerce individuals to get a vaccine, or else, is unconstitutional.”
In the decision filed November 6th,the 5th Circuit wrote, “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”
This 5th Circuit case is brought by the states of Texas, Mississippi, Utah, Louisiana, South Carolina, and Utah. According to the Louisiana Attorney General, the decision applies nationwide.
Some 27 states filed lawsuits challenging the rule in several circuits. Several businesses have also challenged the mandate in the 5th Circuit.
Earlier, Governor Dunleavy issued an Administrative Order on November 2nd, directing State agencies to oppose unconstitutional actions, including vaccine mandates by Biden.
The state of Alaska is among the many states filing lawsuits. Alaska filed a federal lawsuit in a different circuit, the 8th U.S. Circuit Court of Appeals, to block the implementation of this COVID-19 vaccine mandate on private employers and states like Alaska that have a state Occupational Safety and Health Administration (OSHA) plan.
The vaccine requirement is part of an Emergency Temporary Standard published by OSHA today.
Alaska Attorney General Treg Taylor recently joined attorneys general from 10 other states to request the Eighth U.S. Circuit Court of Appeals block OSHA from implementing the rule until after the courts decide on its legality. OSHA’s emergency temporary standard would make it mandatory for all private businesses and certain governments with more than 100 employees to be either vaccinated for COVID-19 or tested weekly. Missouri and the coalition of states are the first to file suit against the vaccine mandate on private employers. Five private employers joined the challenge as well.
“The Biden Administration’s OSHA rule was a long time coming and we have been preparing for months now in anticipation,” said Governor Dunleavy.
Dunleavy said, “President Biden’s attempt to force mandates upon the nation is unconstitutional – it is an attack against the individual’s freedom and a threat against liberty. My administration previously issued an Administrative Order which represents my commitment to Alaskans against President Biden’s vaccine mandates. Alaskans can rest assured I will take every action possible to defend them and their rights. I am not anti-vaccine; I am anti-mandate, and I will stand up against federal overreach.”
The lawsuit claims OSHA has no legal grounds for expanding its authority. The Supreme Court has determined that executive agencies have no power to institute such broad and overarching rules. OSHA’s responsibility is to protect Americans against workplace hazards, not enforce rules that significantly impact religious liberty and personal freedoms.
“OSHA’s emergency temporary standard violates the separation of powers and infringes upon the right of all Americans to decide for themselves whether a COVID-19 vaccine is right for them,” Attorney General Taylor said.
Taylor said, “This mandate is unconstitutional, and we have made strong arguments as to why the courts should block implementation of OSHA’s rule.”
OSHA should have taken into account the potential religious objections of employees to the vaccine mandate and it should have considered other alternatives for those with natural immunity to COVID-19, the suit stated. The suit referred to the rule as an “overreach by a massive federal bureaucracy,” which previous courts have invalidated.
“OSHA cannot use the fact that hundreds of millions of Americansss are employed in the national economy to regulate all facets of their lives with only attenuated workplace connections. But the Biden Administration has effectively admitted that this is precisely the role the Vaccine Mandate is intended to perform,” the court filing states.
Moreover, the OSHA rule creates a “Hobson’s choice” for employees, subject to either losing their jobs or forfeiting their personal freedom and bodily integrity.
“The President is not a king and he does not get to make up the law and control the individual,” said Governor Dunleavy. “This is why he lost the eviction moratorium and why he will lose again. Health measures are a traditional state and local power under the 10thAmendment.”
Alaska joined Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming in the petition filed today.