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5th Circuit to OSHA: Do not implement
or enforce the vaccine mandate
until further court order.
BST Holdings v. OSHA (5th Cir
Sent to Custom Alerts™ subscribers on 11/12/2021
The 5th Circuit issued a stay
pending adequate judicial review of OSHA's emergency temporary
standard (ETS) (a/k/a/ Mandate) that all employees at private
companies with more than 100 workers must get COVID-19
vaccinations, or be tested weekly. This reaffirms the court's
temporary stay issued on November 6.
The court ordered that
"OSHA take no steps to implement or enforce the Mandate until
further court order."
blistering language, the court made four main points:
"the petitioners' challenges to the Mandate show a great
likelihood of success on the merits"
Safety and Health Act … 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
"The Mandate's … promulgation grossly exceeds
OSHA's statutory authority."
The Mandate is "staggeringly
overbroad," and "is a one-size-fits-all sledgehammer."
Administration’s prior statements … belie the notion that COVID-19
poses the kind of emergency that allows OSHA to take the extreme
measure of an ETS."
"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."
denial of the petitioners' proposed stay would do them irreparable
(3) "a stay will do OSHA no harm whatsoever."
(4) "a stay is firmly in the public interest."
Similar cases are pending in several other Circuit Courts, and we
expect them all to be transferred to a single Circuit Court – to
be determined by a lottery on November 16.
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