Over the weekend, the Fifth Circuit struck a blow against Big Bird and blocked the Biden administration’s new OSHA vaccine rules citing “grave statutory and constitutional” issues. It’s not clear what those issues would be, of course. OSHA has broad authority to ensure safe working conditions for workers and that would include “preventing outbreaks of a preventable disease that’s killed over half a million people in this country.”
More direct mandates are the province of the individual states according to existing precedent, but the indirect requirement that employers take action themselves to require vaccinations or face safety violations would seem to fit precisely within the established authority of OSHA. Vaccine rules may be novel for OSHA, it’s only been around since 1970 and this is its first global pandemic.
Nonetheless after consulting the treatises (e.g., Rogan on Epidemiology and the back of a flyer some guy handed them in the parking lot), a district court issued a nationwide ban quickly rubberstamped by Fifth Circuit judges hoping that this may earn them a crack at State Farm’s coveted Rodgers Rate.
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But the Biden administration is not going to take this lying down — because it’s not intubated like the numbnuts the Fifth Circuit is fawning over. With lawsuits over the OSHA rules filed in multiple circuits simultaneously — including a number likely to turn out decisions directly contrary to the Fifth Circuit’s — the administration just requested referring the whole matter to a randomly selected MDL court, which would have the option of modifying the Fifth Circuit’s order or even nixing it entirely.
While the luck of the draw could also throw the matter to the more crazy corners of the federal judiciary, it doesn’t get much crazier than current Fifth Circuit complement so the administration may as well roll the dice. A 50-50 shot at judicial competence is decent odds when the impact is turning the office into a superspreader event.
It’s a fantastic system of governance, isn’t it?
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.