Looking At The Vax Mandate Lawsuits

The coverage of the Fifth Circuit's ruling to stay temporarily the Biden OSHA rule mandating vaccinations for employees of firms with over 100 workers has been remarkably shallow. The basic outline is this:

An appeals court ruled on Saturday to temporarily halt President Biden’s coronavirus vaccine mandate for businesses with 100 employees or more.

The ruling came from the U.S. Court of Appeals for the Fifth Circuit after Texas Attorney General Ken Paxton (R) filed a challenge to the mandate requiring employers with over 100 or more employees to get vaccinated or undergo frequent testing directly with the court.

The challenge included the states of Louisiana, Mississippi, Utah and South Carolina.

. . . OSHA’s rule includes sending agents to inspect businesses to determine if they are abiding by the mandate. If a business is found to not be in compliance, a company could be fined $136,532.

Paxton argued in the announcement of Texas’s challenge that the mandate goes outside of OSHA’s “limited power and specific responsibilities” and is “flatly unconstitutional.”

The court agreed, finding "grave statutory and constitutional issues” with the mandate and ordering The Biden administration to respond to the group's request for a permanent injunction by 5 PM today. However, I really had to dig to find the legal reasoning behind the suit and the court's action. This is just further basis for my long-held view that reporters on any spot on the political spectrum have the mental capability of promising eighth graders.

It turns out that the Texas argument is very similar to the US Supreme Court's ruling last August 26 blocking the CDC's extension of an eviction moratorium.

The ban on evictions, a two-month order, was issued by the Centers for Disease Control and Prevention. The pause covers parts of the United States that are experiencing what the CDC calls "substantial" and "high" spread of the coronavirus.

. . . The court's majority said the CDC exceeded its authority with the temporary ban.

The majority opinion says that the CDC for its order relied on "a decades-old statute that authorizes it to implement measures like fumigation and pest extermination."

"It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts," the majority writes, adding: "If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it."

This decision appears to be based in turn on long-established doctrine that regulatory agencies can't issue regulations beyond their scope. The CDC regulates public health measures. It can't suddenly be put to enforcing an eviction moratorium. The Texas argument, which the circuit court agreed with, is that OSHA generally regulates physical workplace safety, not public health. If Congress wants to expand OSHA's mandate, it must change the existing law.

An additional factor, not mentioned in the Texas case, is that the Secretary of Labor has announced that truckers are sorta kinda exempt, since they work alone in their cabs and don't interact with others. But this is pretty clearly an arbitrary political move intended to prevent mass firings of truckers, which would further disrupt the supply chain. Truckers must interact with other people at shippers' and destination locations, as well as on the road at truck stops.

So far, it appears that almost all of the numerous lawsuits filed against the OSHA vaccine mandate rely on the above doctrine. This is likely reasonable, since it's based on arguments toward which the current US Supreme Court has already been friendly.

However, it leaves aside the question of the HIPAA Privacy Rule, which requires that employee medical records not be accessible by corporate management. This exists on one hand to prevent employees' medical records of, say, HIV or abortion being used against them, but now a medical record of vaccination must be provided to the same employer in one arbitrary circumstance. In addition, more general rules requiring, for instance, fast food workers or bouncers to see confidential medical records for entry to a business are also a problem that isn't addressed in these lawsuits.

We'll have to see how this develops.