Business groups and workers are asking the Supreme Court for emergency action Friday after a federal appeals court reinstated President Joe Biden’s vaccine mandate for businesses with 100-plus employees, impacting 84 million workers.
In a 2-1 decision, a three-judge panel for the U.S. Court of Appeals for the Sixth Circuit, including President Barack Obama appointee Judge Jane Stranch and President George W. Bush appointee Judge Julia Gibbons, who has a reputation as a liberal-leaning moderate, voted to dissolve the stay on Biden’s coronavirus vaccine mandate granted earlier by the Fifth Circuit. President Donald Trump appointee Judge Joan Larsen dissented. The Occupational Safety and Health Administration (OSHA) mandate will take effect on January 4, though it allows unvaccinated workers to submit to weekly testing in lieu of getting jabbed.
Politico reported that 27 businesses responded late Friday night by applying to the Supreme Court for a stay, asking the justices to reinstate an order from another appeals court – the Fifth Circuit – that had blocked Biden’s mandate in November shortly after it was issued, asserting that the OSHA rule will “harm” thousands of businesses across the country.
“This mandate adds an incredible burden on small business owners who are still suffering negative effects of the pandemic. This mandate will make it even harder for small business owners to find and keep employees,” the Job Creators Network said in a statement. “The [Sixth] Circuit irresponsibly upheld an illegal rule and expects employers to somehow comply with a complicated regulation in a period of two weeks, including the holidays. JCN has immediately asked the Supreme Court to save businesses and employees from this government overreach.”
The case ended up in the Sixth Circuit following a ping-pong ball lottery in mid-November. A ping-pong lottery occurs when multiple petitions for review are filed against the same agency, person, or business in various courts of appeal around the country. To save time and avoid contradictory outcomes, the numbers of the courts in which the suits are filed are written on ping-pong balls, stuck in a solid wood raffle drum, and one is randomly selected. The lottery allowed at least 34 different lawsuits brought against Biden’s mandate in 12 different courts of appeals to be heard all together.
The Sixth Circuit, which has a Republican judge majority 10-6, dissolved the stay issued by the Fifth Circuit in November — a court widely considered the most conservative-leaning court of appeals.
The New Orleans-based Fifth Circuit originally held:
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.
Judge Stranch of the Sixth Circuit disagreed, writing that the mandate is necessary to stop the transmission of the coronavirus. Stanch did not comment on the fact that vaccinated people, according to the Centers for Disease Control and Prevention (CDC), are able to transmit the virus as easily as unvaccinated people.
“Recognizing that the ‘old normal’ is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there,” she wrote. “In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration.”
Stranch further contended that the costs of delaying the implementation of the mandate are “comparatively high.”
She continued:
Fundamentally, the [mandate] is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.
Judge Gibbons wrote a concurring opinion, saying the court’s only “responsibility” is to determine if OSHA has acted “within the bound of its statutory authority” and contending “it likely has done so.”
Judge Larsen, in her dissent, said the majority did not take into account if Congress “authorized the action the agency took.”
Larsen wrote;
That question is the bread and butter of federal courts. And this case can be resolved using ordinary tools of statutory interpretation and bedrock principles of administrative law. These tell us that petitioners are likely to succeed on the merits, so I would stay OSHA’s emergency rule pending final review.
The applications for a stay have been submitted to Justice Brett Kavanaugh as the circuit justice who supervises the Sixth Circuit.
The cases are consolidated under the name In re MCP No. 165, No. 21-7000, in the U.S. Court of Appeals for the Sixth Circuit.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on Twitter.