More than two dozen businesses have filed an appeal with the U.S. Supreme Court late on Friday night after a federal appeals court allowed Democrat President Joe Biden’s administration to resume its vaccine mandate on large employers.
“Twenty-seven business groups swiftly responded to the decision late Friday, filing an appeal to the Supreme Court to block the mandate,” Politico reported. “They argued the OSHA rule would ‘harm’ thousands of businesses across industries.”
The appeal says:
It will impose substantial, nonrecoverable compliance costs on those businesses. Those businesses will be faced with either incurring the costs of testing for the millions of employees who refuse to be vaccinated—and passing those costs on to consumers in the form of yet higher prices at a time of record inflation—or imposing the costs of testing upon their unvaccinated employees, who will quit en masse rather than suffer additional testing costs each week.
The businesses took the fight to the Supreme Court after the U.S. Appeals Court for the Sixth Circuit ruled 2-1 late on Friday that the Labor Department’s Occupational Safety and Health Administration (OSHA) to could resume enforcement.
“Recognizing that the ‘old normal’ is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there,” wrote Judge Jane Branstetter Stranch, a Barack Obama appointee, for the majority. “In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration.”
Immediately following the release of the OSHA vaccine mandate, The Daily Wire was the first major company to file a lawsuit against the Biden administration, as the company noted in a report last month:
The lawsuit does not take a position on whether someone should receive the vaccine or not, only against Biden’s mandate, announced earlier this year and unveiled on Thursday morning. The mandate applies to all companies with 100 or more employees and forces those businesses to police the vaccine status of their employees. The Daily Wire, with over 100 employees, falls under the mandate.
The Daily Wire’s lawsuit seeks to overturn Biden’s executive action, arguing that the order is unconstitutional and that the Biden administration violated federal law in drafting it.
Jeremy Boreing, co-founder and co-CEO of The Daily Wire, explained the company’s decision, saying, “We’re not the enforcement arm of the federal government.”
“Forcing Americans to choose between their livelihoods and their freedom is a grotesque abuse of power and we won’t be a party to it,” Boreing added. “We will not incur the cost of implementing this testing regime. We will not incur the liability of inserting ourselves into the private health decisions and information of our employees. Our company was founded to stand against tyranny, and we will.”
The U.S. Court of Appeals for the Fifth Circuit issued a stay shortly after the vaccine mandate was imposed on large companies, citing potential “grave statutory and constitutional” issues with the mandate.
The U.S. Court of Appeals for the Fifth Circuit wrote:
Before the court is the petitioners’ emergency motion to stay enforcement of the Occupational Safety and Health Administration’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) pending expedited judicial review.
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.
The 6th Circuit Court of Appeals criticized the 5th Circuit’s reasoning, saying:
In reaching its decision to stay the ETS, the Fifth Circuit generally forecasted that the ETS faced fatal statutory and constitutional issues, then concluded that the Petitioners had demonstrated a strong likelihood of success on the merits. … the Fifth Circuit found that individuals, states, and employers would be “substantially burdened” due to the compliance costs, loss of constitutional freedom, and intrusion into States’ “constitutionally reserved police power.” … Without addressing any of OSHA’s factual explanations or its supporting scientific evidence concerning harm, the Fifth Circuit summarily concluded that “a stay will do OSHA no harm whatsoever” and “a stay is firmly in the public interest.”
As The Daily Wire noted, after a lengthy discussion of OSHA’s claimed statutory authority to implement such a mandate, Stranch writes of the “Major Questions Doctrine,” which was brought up by the petitioners.
“The major questions doctrine is inapplicable here, however, because OSHA’s issuance of the ETS is not an enormous expansion of its regulatory authority,” Stranch writes. “OSHA has regulated workplace health and safety on a national scale since 1970, including controlling the spread of disease.”
“The ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic,” Stranch continues.
Judge Joan Larsen, nominated by former President Donald Trump, wrote the dissenting opinion:
As the Supreme Court has very recently reminded us, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021). The majority’s theme is that questions of health science and policy lie beyond the judicial ken. I agree. But this case asks a legal question: whether Congress authorized the action the agency took. That question is the bread and butter of federal courts. And this case can be resolved using ordinary tools of statutory interpretation and bedrock principles of administrative law. These tell us that petitioners are likely to succeed on the merits, so I would stay OSHA’s emergency rule pending final review.
This story has been updated to include additional information.
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