When we learned last month that the various challenges to President Joe Biden’s OSHA vaccination mandate for employers with more than 100 workers were being handed off to the 6th Circuit, I made the tongue-in-cheek observation that the case was going to “the right court.” That was because liberals in the media were setting their hair on fire over the fact that a majority of judges on that bench had been nominated by Republicans. When the Associated Press covered the announcement, they literally spent more ink talking about the GOP appointments than the challenges to the mandate. It appears they really didn’t have as much to worry about as they’d been imagining. Last night, a three-judge panel on the 6th Circuit handed down a ruling in favor of the White House, allowing the mandate to go into effect next month, assuming this ruling isn’t overturned as well. (NY Post)
A federal appeals court on Friday reinstated President Biden’s mandate requiring all large private employers to ensure their staff is either vaccinated or tested weekly for COVID-19.
The ruling, issued by the Cincinnati-based 6th US Circuit Court of Appeals, reversed a stay issued by another court that had blocked the requirements nationwide.
The panel, divided in a 2-1 decision, said legal challenges to the mandate would most likely fail. Ten Republican-led states had sued the government over the order, which is expected to be appealed to the Supreme Court for an emergency ruling.
This case is now headed for the Supreme Court where it’s expected to be heard on an emergency basis. Of course, that was always where this one was going to wind up. No matter which side lost, they were going to take it to the final stage and hope for the best.
As to the way this was handled at the 6th Circuit, there were a few surprises. The first was the decision to hand the matter to a three-judge panel rather than holding an en banc hearing. Normally, in a case this complex and involving so many plaintiffs, disagreements between the lower courts, and other moving parts, it would be heard by the full bench. We have no way of knowing how this would have gone if they had done that.
Also, the predictions about the partisan nature of the judges involved didn’t play out as predicted either. The panel that heard the case was composed of three female judges. One of them, the author of the decision, was Judge Jane Branstetter Stranch, an Obama appointee. The other two, Judges Julia Gibbons and Joan L. Larsen, were nominated by George W. Bush and Donald Trump respectively. That means that one of the two GOP appointees voted with Stranch in support of the mandate.
Another reason that this case is ripe for a SCOTUS appeal is that the findings of the 5th and 6th Circuits were so markedly different, describing the vaccine mandate in mostly contradictory terms. When the 5th Circuit originally ruled to block the mandate, they described “grave statutory and constitutional concerns” over OSHA’s authority to issue the mandate and how it was put in place. But two of the judges on the 6th Circut panel found that OSHA is in the clear, saying that they had taken “a holistic view of the language that Congress chose to include in its statutory authorization to OSHA.” (You can read the full decision in .pdf form here.)
As our colleague Rebecca Downs reminded us last night at Townhall, Job Creators Network has been heavily involved in this lawsuit from the beginning. The group’s President and CEO Alfredo Ortiz quickly issued a statement expressing disappointment with the ruling but retaining hope for a better outcome with SCOTUS.
“The Job Creators Network is disappointed the 6th Circuit has decided to side with the Biden Administration’s illegal employer vaccine mandate—on a Friday night, no less. 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 6th 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,” he said.
You can expect the Supreme Court to take this one up fairly quickly, despite the request coming so close to Christmas. How many and which justices will hear it is anyone’s guess right now, and I personally wouldn’t bet the ranch on which way the decision will fall. But the mandate is scheduled to go into effect in seventeen days, so we should know soon enough.