John and I have declared the war on Covid over, but President Biden has painted the administration into the proverbial corner. He promised to extirpate the virus and means for us to die trying. In his blandly titled September 9 “action plan” titled Path Out of the Pandemic, Biden directed OSHA to issue a rule requiring private sector employers with 100 or more employees to mandate that employees either get an approved COVID-19 vaccination or produce a negative test on a weekly basis.
Digression: Assuming he can still read a teleprompter when the time comes, I can hear Biden pitching an updated fall detection product in his post-presidential career. I have fallen off the path and I can’t get up! End of digression.
Undertaking adventures in administrative law, Obamacare style, OSHA followed through as directed with an elaborate emergency temporary standard published on November 5. It’s a long, long way to “temporary.” That much I can tell you.
The OSHA rule illustrates one of the points made by Professor Philip Hamburger in his great work of legal scholarship Is Administrative Law Unlawful? Professor Hamburger observes that “administrative law has avoided much rancor because its burdens have been felt mostly by corporations. Increasingly, however, administrative law has extended its reach to individuals. The entire society therefore now has opportunities to feel its hard edge.”
We have followed the litigation that challenged OSHA’s promulgation of the emergency temporary standard. The latest installment is a glorious victory for the Biden administration. Yesterday the Sixth Circuit reinstated the vaccine-or-test mandate for large businesses, lifting the stay that the Fifth Circuit had imposed. The 2-1 Sixth Circuit opinion is posted online here. Suffice it to say that I find Judge Larsen’s dissent at pages 39-57 persuasive.
It’s hard to keep track without a scorecard. In its story on the Sixth Circuit decision, Politico adds that the Biden administration also faced a setback Friday when the 11th Circuit Court of Appeals refused its request to lift an order blocking its vaccine mandate for federal contractors. In its story on the Sixth Circuit decision, CNN adds that the Supreme Court was asked by the Justice Department on Thursday to let the government fully implement a vaccine requirement for health care workers at providers that participate in Medicare or Medicaid: “One appeals court has backed the requirement, but two other appeals courts have doubted the mandate’s legality, leaving it blocked in half the states in the country.”
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