On Friday, the U.S. Court of Appeals for the Sixth Circuit issued an order disposing of several procedural motions in the litigation challenging the Biden administration’s vaccine mandate. The most important ruling is the denial of a motion to transfer the case to the D.C. Circuit.
The case landed in the Sixth Circuit as the result of a multi-circuit lottery. Team Biden’s attempt to overturn that result was forum shopping, plain and simple.
Ever since Barack Obama packed the D.C. Circuit with three liberal judges (I call it packing because Democrats had to change Senate rules to get the three confirmed), that appeals court has been dominated by liberals. The Sixth Circuit is more conservative. A majority of its judges were appointed by Republican presidents, including five by Donald Trump and eight by George W. Bush, compared to five by Bill Clinton (including a senior judge) and only two by Obama. Thus, Biden would rather have his vaccine mandate — the one he said he wouldn’t impose — adjudicated by the D.C. Circuit,
It doesn’t follow that the administration will lose in the Sixth Circuit or, for that matter, that it would have prevailed in D.C. But Friday’s ruling decreases, by some indeterminate amount, the likelihood that the vaccine mandate will be upheld.
At the same time, the Sixth Circuit rejected a motion by another party, a union, to send the case to the Fifth Circuit Court of Appeals. The Fifth Circuit is, as I understand it, more conservative than the Sixth, and it has already issued a temporary stay of the vaccine mandate.
The Sixth Circuit gave no explanation for its decisions to abide by the lottery outcome. (What’s Latin for “just lucky, I guess”?)
In the same order, the Sixth Circuit rejected the administration’s attempt, for obvious reasons, to expedite the briefing schedule on its motion to dissolve the stay of the vaccine mandate issued by the Fifth Circuit. The court added that it “reserves judgment” to set deadlines for reviewing the merits of the administration’s rule.
An unresolved procedural issue is whether the entire Sixth Circuit will hear the vaccine mandate case or whether it will be heard, at least in the first instance, by a three-judge panel, as is normal. The court could also decide to lift the stay ordered by the Fifth Circuit.
Everything is still up for grabs when it comes to the judicial fate of the vaccine mandate. But we now know that it is up for grabs in a relatively conservative court.
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