In an update to the ongoing legal saga involving the lawsuits against the Occupational Safety and Health Administration’s (OSHA) employer vaccine mandate, the 6th U.S. Circuit Court of Appeals has decided against putting the case against OSHA before the full 16-member court. The plaintiffs suing OSHA had requested the full court hear the case.
Instead, a three-judge panel of the 6th Circuit, with the judges chosen randomly, will hear the case first. Any decision the panel makes on the mandate will still be subject to review by the full appeals court, in addition to the U.S. Supreme Court.
The case involves dozens of litigants against OSHA’s vaccine-or-test mandate, which requires employers with 100 or more employees demand their workers be fully vaccinated against COVID-19, or test weekly for the virus and wear facemasks while at work.
Of the 16 active judges on the court, eight dissented from the court’s decision, meaning the court decided against putting the case before the full court in a tied 8-8 vote.
Judge Sutton wrote a 27-page dissent from the court’s decision, joined by Judges Kethledge, Thapar, Bush, Larsen, Nalbandian, Readler and Murphy. Judge Bush also wrote a separate 10-page dissent.
Interestingly, all six of former President Donald Trump’s appointees to the circuit voted to put the case before the full court.
“When much is sought from a statute, much must be shown,” Judge Sutton wrote. “The Secretary of Labor asks a lot of the Occupational Safety and Health Act. He claims authority to issue an emergency rule, scheduled to go into effect on January 4, 2022, that will require roughly 80 million workers to become vaccinated or face a weekly self-financed testing requirement and a daily masking requirement.
“At the same time, he assumes authority to regulate an area—public health and safety—traditionally regulated by the States. If valid, the rule would nullify all contrary state and local regulations, as the power to regulate nationally is the power to preempt locally. Such broad assertions of administrative power demand unmistakable legislative support.”
And yet, “Congress did not ‘clearly’ grant the Secretary of Labor authority to impose this vaccinate-or-test mandate,” he opined.
Judge Bush wrote separately:
“This is a case about the Occupational Safety and Health Administration, but it is really a case about power. Specifically, it concerns the attempted exercise of a purported power—to impose a de facto national vaccine mandate upon some eighty-million Americans—that OSHA was never given and that Congress likely could never have given to it.”
Two of the most prominent Christian legal advocacy groups, Alliance Defending Freedom and First Liberty Institute, are representing different plaintiffs in the case.
The Daily Citizen will keep you updated as this case proceeds.
The case is In re: MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402
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