5th U.S. Circuit Court of Appeals Utterly Vitiates President Biden’s Vaccine Mandate for Private Employers

This is a statement based on legal analysis and not a political one. Regardless of one’s politics or feelings about COVID vaccines, the legality of the administration’s approach was thoroughly debunked on both legal and practical grounds.

The court signaled its early inclinations when it issued a preliminary injunction temporarily staying enforcement of the ETS until further briefing could be completed. The requested briefs were submitted by the various parties involved less than a week after the preliminary injunction went into effect; and the decision to enter an injunction staying enforcement of the ETS until the case can be decided on the merits was entered less than a week later. That order was accompanied by a 22-page opinion that pointed out a number of flaws in OSHA’s attempts to enforce President Biden’s vaccine mandate. At the outset, the court was quick to point out that OSHA has only used an ETS on 10 occasions since its inception 50 years ago. Six of those 10 ETS’ were challenged in court; and only one of those challenged in court survived scrutiny. As the court pointed out, the use of an ETS is an “extraordinary power” that is not to be wielded lightly. The standard required to impose one is exceptionally high and the use of such power should be “delicately exercised” as a result.

The court correctly concluded that the federal government does not have police powers and can only regulate this kind of conduct through interstate commerce under the Commerce Clause of the Constitution. Because the mandate and the accompanying ETS relate to public health and not interstate commerce, the ETS is invalid in the court’s eyes.

In a well-written opinion rich with cutting language, the court determined that the challenge was likely to succeed on the merits. This likely foreshadows where the court will land when it issues its ultimate opinion on the merits and suggests the Biden Administration will not be successful in defending its policy. The core issue in this regard relates to the ability—or, rather, the inability—of the federal government to regulate personal conduct when there is no direct economic impact in play. Stated differently, the court correctly concluded that the federal government does not have police powers and can only regulate this kind of conduct through interstate commerce under the Commerce Clause of the Constitution. Because the mandate and the accompanying ETS relate to public health and not interstate commerce, the ETS is invalid in the court’s eyes.

In addition to what the court called “grave” constitutional questions, the court called into question whether the issue even qualified as an emergency. Among the things it evaluated to reach this conclusion was the fact that President Biden had been in office for nearly 9 months before he issued the policy and it took two months to come out with the ETS after he declared a private employer vaccine mandate. Perhaps the most damning part of this analysis was the court’s use of OSHA’s own pronouncements to other courts and the public indicating that this was not the kind of emergency OSHA was designed to address and that it was better to leave private employers to deal with the situation as they deemed appropriate.

After questioning the constitutionality of the mandate as applied, the court went on to question the validity of the ETS otherwise. It concluded that OSHA was not created and was unqualified to deal with public health emergencies. In indicating that the policy is not in the public interest, the court pointed out that “health agencies do not make housing policy, and occupational safety administrations do not make health policy.” OSHA overreached with the ETS from both a practical and a legal perspective. Additionally, the enabling portion of the federal law creating OSHA does not give it the legal power to regulate conduct in the realm of health care; and application of the standard by definition treats various employers and employees differently depending on their circumstances. Why, for instance, is protection of people in companies with 100 or more employees more important than those with only 10 employees?

In concise summary form, the 5th Circuit determined that the pandemic was a public health emergency that OSHA was not designed to tackle. In addition to the pandemic being outside the bounds of what OSHA can legally do, it is impractical for OSHA to implement the policy it put out, and it contradicts positions OSHA took on the very same issue less than a year prior. Because the regulations are not an emergency and will not likely survive closer scrutiny by the court, a stay on both implementation and enforcement was put in place until the issue can ultimately be decided.

For its part, the Biden Administration maintains it has the power to undertake this regulatory framework. The fight, including possible appeals, is likely to continue as a result. Given the current posture of the case, however, it seems unlikely that the private employer mandate will survive in its current form.

Josh Quinter is a commercial litigation attorney, with a focus on construction law. He is also a member of the Board of Directors and a department chair at his law firm, Offit Kurman. Active in a number of construction trade and business organizations, he presently serves as the president of the Mid-Atlantic Chapter of the Metal Building Contractors & Erectors Association (MBCEA), serves on the MBCEA national board and is the organization’s general counsel. Contact him at jquinter@offitkurman.com or for more information go to www.offitkurman.com/attorney/joshua-quinter.