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http://ethicsalarms.com/2021/11/14/the-fifth-circuit-says-the-biden-administration-abused-its-power-and-the-constitution-better-impeach-him-then/
The Fifth Circuit Says The Biden Administration Abused Its Power And The Constitution. Better Impeach Him, Then!
NOVEMBER 14, 2021 / JACK MARSHALL
Vaccine mandate
Just kidding! Presidents often try to stretch the already rubber
boundaries of what the Constitution and even the law requires, only to
get slapped down by the courts. This kind of thing was only grounds for impeachment (according to the Trump Deranged, the mainstream media
pundits and Democrats) when Donald Trump did it.
But President Trump never tried anything as egregiously dictatorial as
the vaccine mandate.
Tell us again who is “a threat to democracy.”
A three-judge panel of the U.S. Court of Appeals for the 5th Circuit,
issued a ruling at the end of this week upholding a stay of the mandate
after temporarily halting the mandate last weekend in response to
lawsuits filed by and legal groups. The Washington Post, telegraphing
its bias as usual, calls them “Republican-aligned businesses and legal groups.” Since the mandate was wildly excessive and pretty clearly
illegal, the question is why “Democratic–aligned” organizations don’t also oppose it. I guess that’s nor really much of a question.
The Post also emphasizes that the panel consisted of judges appointed by
Reagan or Trump, because in Progressivese, that means the ruling is
partisan. No, it really isn’t. It’s just right, as any fair reading of
the opinion by Judge Kurt D. Engelhardt and joined by Judges Edith H.
Jones and Stuart Kyle Duncan will reveal. Of course, none of your metaphorically screaming Facebook friends will read it.
You will, though, right? It’s pretty thorough and damning, as well as
bit nasty, which any administration trying something like this deserves. (It’s better than an impeachment!)
Highlights:
[I]n its fifty-year history, OSHA has issued just ten [Emergency
Temporary Standards]. Six were challenged in court; only one survived.
The reason for the rarity of this form of emergency action is simple:
courts and the Agency have agreed for generations that “[e]xtraordinary
power is delivered to [OSHA] under the emergency provisions of the
Occupational Safety and Health Act,” so “[t]hat power should be
delicately exercised, and only in those emergency situations which
require it.”…
This case concerns OSHA’s most recent ETS—the Agency’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) requiring employees of
covered employers to undergo COVID-19 vaccination or take weekly
COVID-19 tests and wear a mask. An array of petitioners seeks a stay
barring OSHA from enforcing the Mandate during the pendency of judicial
review. On November 6, 2021, we agreed to stay the Mandate pending
briefing and expedited judicial review. Having conducted that expedited
review, we reaffirm our initial stay….
Many of the petitioners are covered private employers within the
geographical boundaries of this circuit.5 Their standing6 to sue is obvious—the Mandate imposes a financial burden upon them by deputizing
their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to
decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road….
The “traditional stay factors . . . govern a request for a stay pending judicial review.” Nken v. Holder, 556 U.S. 418, 426 (2009). Under the traditional stay standard, a court considers four factors: “(1) whether
the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770,
776 (1987).
Each of these factors favors a stay here….
We begin by stating the obvious. The Occupational Safety and Health Act,
which created OSHA, was enacted by Congress to assure Americans “safe
and healthful working conditions and to preserve our human resources.”
See 29 U.S.C. § 651 (statement of findings and declaration of purpose
and policy). It 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 of ways…
On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed
on its own terms. Indeed, the Mandate’s strained prescriptions combine
to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and
workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely
night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or
more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very
same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years,
and which OSHA itself spent nearly two months responding to—is
unavailing as well. And its promulgation grossly exceeds OSHA’s
statutory authority….
…the Mandate at issue here is anything but a “delicate[] exercise[]” of this “extraordinary power.” Quite the opposite, rather than a
delicately handled scalpel, the Mandate is a one-size-fits-all
sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on
workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address…
…OSHA is required to make findings of exposure—or at least the presence
of COVID-19—in all covered workplaces. Of course, OSHA cannot possibly
show that every workplace covered by the Mandate currently has
COVID-positive employees, or that every industry covered by the Mandate
has had or will have “outbreaks.”…
Equally problematic, however, is that it remains unclear that COVID-19—however tragic and devastating the pandemic has been—poses the kind of grave danger § 655(c)(1) contemplates….For starters, the Mandate itself concedes that the effects of COVID-19 may range from “mild” to “critical.” As important, however, the status of the spread of the virus has varied since the President announced the general parameters of the
Mandate in September. (And of course, this all assumes that COVID-19
poses any significant danger to workers to begin with; for the more than seventy-eight percent16 of Americans aged 12 and older either fully or partially inoculated against it, the virus poses—the Administration
assures us—little risk at all.)…
….the Mandate makes no serious attempt to explain why OSHA and the
President himself were against vaccine mandates before they were for one here….
That last, a deliberate jibe at John Kerry, signals the panel’s general
level of annoyance, and it is well deserved. The mandate will eventually
be ruled on by the Supreme Court after one of the more liberal Circuits
rules differently, or perhaps sooner than that. This opinion signals to
all but those in Progressiveland that believe in unicorns and Hobbits
that the thing is doomed. Good.
The angry proto-totalitarians will argue, indeed are arguing, that the
mandate is justified because it will speed the decline of the Wuhan
virus threat. It probably will. They just don’t get it. Our values and
system hold that the ends don’t justify the means when the means is the government infringing on basic human rights and liberties. The now totalitarianism-tending Left doesn’t like that about the Constitution or
the United States.
As an ethicist, I don’t like that slippery slope. It goes from
vaccinations, to mandated masks in the workplace, to mandated masks
everywhere, to mandated speech supporting climate change edicts and “diversity.” Masks or no masks, we can recognize these people for what
they are.
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