Now that a federal appeals court has temporarily halted the Biden administration’s vaccine mandate for large businesses, it will next consider arguments for and against a permanent injunction.
Government lawyers Monday opposed the stay the 5th Circuit Court of Appeals in New Orleans issued over the weekend, contending it would “likely cost dozens or even hundreds of lives per day.”
The five states, including Utah, that sued the government over the mandate have until Tuesday evening to respond.
Also Monday, the White House said companies should move ahead with the vaccine and testing requirements, despite the order halting the rules.
“People should not wait,” White House deputy press secretary Karine Jean-Pierre told reporters during a briefing. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”
Meantime, the Utah Legislature plans to consider measures in a special session Tuesday to counter the federal mandate, including requiring businesses to provide religious, medical or personal exemptions to the mandate.
“We’re pushing back hard right now on the mandate,” Utah Senate President Stuart Adams, R-Layton, said on KSL Newsradio’s “Dave and Dujanovic” show.
On Saturday, the 5th Circuit court granted an emergency stay of an Occupational Safety and Health Administration rule that workers in companies with at least 100 employees be vaccinated by Jan. 4 or face mask requirements and weekly COVID-19 tests. Companies that don’t comply could be fined nearly $14,000 per violation.
The order came after Texas, Louisiana, Mississippi, South Carolina and Utah sued the Department of Labor and OSHA over the rule. The court found the states’ petition gives cause to believe there are “grave statutory and constitutional issues” with the mandate.
“While today’s victory is important, we look forward to further argument, litigation, and legislative action on all fronts to protect the constitutional liberties of our citizens,” Republican Utah Attorney General Sean Reyes said in a statement Saturday.
The five states argue the vaccination rule, issued by OSHA as an emergency temporary standard last Thursday, is unconstitutional and outside the scope of President Joe Biden’s power.
“The stated bases for the rule are pretextual: President Biden wanted to increase vaccinations and ordered OSHA to create a novel ‘work-around’ of federal law. It did so,” according to court documents filed in the case.
The five states argue that the “work-around” fails because OSHA is an occupational health agency charged with protecting workers from workplace hazards like asbestos, not a public health agency with authority to address communicable diseases through regulation.
In its court filing, the government contends the states asserted injuries are “speculative and remote” and do not outweigh the interest in protecting employees from a dangerous virus while the lawsuit proceeds.
“Nor have petitioners shown that their claimed injuries outweigh the harm of staying a standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations. OSHA’s detailed analysis of the standard’s impact shows that a stay would likely cost dozens or even hundreds of lives per day,” according to court documents.
The U.S. Labor Department’s top legal adviser, Solicitor of Labor Seema Nanda, said the department is “confident in its legal authority to issue the emergency temporary standard on vaccination and testing” according to The Associated Press.
OSHA has the authority “to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” she said.
The states argue the Biden administration is trying to leverage the COVID-19 pandemic into a justification to “reconfigure massive sectors of the American economy.” In so doing, they say, it has flouted the Constitution and its authority under the law.
“But the vaccine mandate at issue here is even more remarkable: although the Biden administration has expressly recognized that it lacks power to take this action, it has pressed forward anyway on a self-confessed pretextual basis,” according to the states.
Also Monday, the Department of Justice notified the 5th Circuit Court that petitions for review challenging the OSHA rule have also been filed in the five other federal circuits. Because of that, the DOJ argues, the cases must be consolidated in one randomly selected appeals court for deciding those lawsuits and considering or reconsidering any stay orders.
Members of Utah’s all-Republican congressional delegation applauded the 5th Circuit court’s temporary stay of the rule.
Sen. Mike Lee, who has unsuccessfully run a dozen bills to blunt the requirement, called it “encouraging.”
“It’s now time for President Biden to make the right choice and rescind the mandate altogether,” he tweeted.
Rep. Chris Stewart echoed those comments.
“It is an unconstitutional abuse of authority. It’s time for President Biden to recognize this overreach, rescind the mandate, and allow Americans their freedoms,” he posted on Twitter.
Thankfully, the Federal Court of Appeals has issued a temporary halt to President Biden’s vaccine mandate.— Rep. Chris Stewart (@RepChrisStewart) November 7, 2021
It is an unconstitutional abuse of authority. It’s time for President Biden to recognize this overreach, rescind the mandate, and allow Americans their freedoms.
The Biden administration has no place mandating vaccines for private businesses, Rep. John Curtis said in a tweet.
“While this ruling is welcomed, we need more legal action proving this is unconstitutional,” he said.