![\"\"](\"http:\/\/stateofthenation.co\/wp-content\/uploads\/2021\/12\/Deana-Pollard-Sacks-featured-image-1024x683-1.jpg\")
<\/p>\n<\/p>\n
Deana Pollard Sacks<\/p>\n
The American public is largely perplexed by the fact that numerous vaccine mandates are being promulgated in ways that are causing people to lose their jobs, homes, and sense of security without due consideration of religious beliefs and medical autonomy. Forced medical procedures are quintessentially and historically un-American and yet a glaring exception has been made for vaccinations as a prerequisite for children to attend school.<\/p>\n
The new vaccine mandates involve a breadth of medical autonomy infringement never before seen in American history, and they apply to adults as well as schoolchildren. This article addresses the Fifth Circuit\u2019s injunctive relief against enforcement of the recent Occupational Safety and Health Administration (OSHA) vaccine mandate and it is the first in a series of articles explaining legal challenges to vaccine mandates and what is going on in the courthouses today.<\/p>\n
On September 9, 2021, President Biden announced that the Department of Labor was in the process of developing an emergency rule to require all employers with 100 or more employees to fully vaccinate all employees or subject them to a COVID test at least once a week. On November 5, 2021, OSHA announced an emergency temporary standard (ETS) setting forth a vaccine mandate consistent with Biden\u2019s directive.<\/p>\n
On November 12, 2021, the Fifth Circuit Court of Appeals issued a preliminary injunction to halt enforcement of the ETS vaccine mandate pending further proceedings and specifically ordered OSHA to take no steps to enforce the ETS pending further court order.\u00a0The Fifth Circuit\u2019s injunction<\/a>\u00a0remains in effect pending a ruling by the Sixth Circuit.<\/p>\n Biden\u2019s and OSHA\u2019s attempts to force millions of Americans to take unwanted medication in the form of a \u201cvaccine\u201d (note that the Centers for Disease Control changed the\u00a0definition of \u201cvaccine\u201d<\/a>\u00a0in 2020 so that the COVID-19 injections could be labeled \u201cvaccines,\u201d) constitutes an unprecedented attempt to use federal regulatory power to override individuals\u2019 medical autonomy\u2013the most fiercely protected individual interest arising from the Liberty Clause.<\/p>\n The constitutional problems with the mandate are largely structural, arising from the separation of powers and the Framers\u2019 deep commitment to limiting federal power by enumerating only so many subjects over which Congress has jurisdiction under\u00a0Article I, Section\u00a0<\/a>8, with all other powers reserved to the states pursuant to the Tenth Amendment. (See Not only does Congress, which created OSHA (see\u00a0https:\/\/www.law.cornell.edu\/uscode\/text\/29\/651<\/a>) lack the authority to create such \u201csweeping\u201d public health pronouncements on matters of public health \u2013 one of the general powers reserved to the states \u2013 but in addition OSHA failed to follow its own prior positions concerning COVID-19 as well as its own regulatory guidelines. The entire process by which Biden\u2019s vaccine mandate was pushed via OSHA smacks of desperation and manipulation.<\/p>\n Accordingly, numerous lawsuits were filed to challenge the OSHA ETS on constitutional and other grounds. The lawsuits were consolidated under a federal rule to select randomly one federal appellate court to review efficiently issues common to the pending lawsuits. The case consolidation landed in the Sixth Circuit, and one challenger promptly filed a petition on November 17, 2021 for a hearing en banc,\u00a0seeking affirmation of the Fifth Circuit\u2019s injunction.<\/a><\/p>\n It seems likely that the Sixth Circuit will agree that an injunction to halt enforcement of the ETS is appropriate, for all of the reasons identified in the Fifth Circuit\u2019s injunction. The remainder of this article explains the Fifth Circuit\u2019s decision.<\/p>\n At the outset, the Fifth Circuit found \u201ccause to believe there are grave statutory and constitutional issues\u201d with the ETS that seeks to force \u201cunwilling employee to take their shots, take their tests, or hit the road.\u201d US Supreme Court precedent delineates four factors to consider when an injunction is requested: 1) whether the party seeking a stay has made a As to the first factor, the court found that despite the \u201cdubious assumption\u201d that the mandate could survive constitutional scrutiny, it is \u201cnonetheless fatally flawed\u201d by its own terms, being woefully both overinclusive and underinclusive. It is over-inclusive because it applies to all industries, even those where risks of infection are miniscule such as \u201ca security It is also under-inclusive by failing to protect employees with 99 or less employees fromthe \u201cgrave danger\u201d OSHA attempts to rely on to justify its ETS. If the danger of COVID infections remains \u201cgrave,\u201d then why are day care centers where people work in small areas with many persons not subject to the ETS? The mandate is a \u201cone-size-fits-all sledgehammer\u201d that falls short of OSHA\u2019s burden to prove \u201cgrave danger\u201d and to prove that the ETS is \u201cnecessary.\u201d OSHA\u2019s ETS burden sounds similar to the most stringent test for constitutionality known as \u201cstrict scrutiny,\u201d which has been declared the test for medical autonomy infringement and also places the burden of proof on the government. The mandate also fails to meet the standard of addressing a \u201cnew hazard\u201d confronting employees in the workplace (and In short, Biden\u2019s and OSHA\u2019s attempt to \u201cshoehorn an airborne virus\u201d that is not life-threatening to the vast majority of Americans into a toxic and poisonous substance was called a \u201ctransparent stretch\u201d by the court, and thoroughly disingenuous: \u201cThe under-inclusive nature of the Mandate implies that the Mandate\u2019s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary\u201d and \u201cthe Mandate flunks a cost-benefit analysis here.\u201d The senselessness of the mandate becomes clear upon critical analysis. It seems like more of a vaccine sales tactic than an attempt to enhance public health.<\/p>\n Second, the harm caused by the ETS would be irreparable. Individuals face losing their jobs and financial security to avoid the COVID vaccine or face ongoing burdensome testing \u2013 assuming they do not suffer serious adverse effects or die from the vaccine. (See\u00a0https:\/\/www.cdc.gov\/coronavirus\/2019-ncov\/vaccines\/safety\/adverse-events.html<\/a>). Violations of constitutional rights \u2013 for any length of time \u2013 constitutes \u201cirreparable injury,\u201d and the Fifth Circuit opined in dictum that, apart from the OSHA regulation-based failures of the ETS, it is unconstitutional per se as outside of the scope of congressional power created by Article I, Section 8\u2019s Commerce Clause. Employers subject to the ETS also would be irreparably injured due to the extraordinary and nonrecoverable compliance costs.<\/p>\n Third, the temporary injunction will not harm OSHA. \u201cAny interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate.\u201d In addition, there can be no \u201charm\u201d from being denied the ability to issue unlawful and unconstitutional dictates. Finally, staying the ETS is in the public interest. \u201cFrom economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months.\u201d The Fifth Circuit also noted, \u201cThe States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.\u201d<\/p>\n The Fifth Circuit\u2019s opinion is a breath of fresh air in a sea of insanity surrounding the vaccine mandates and vaccine passports. But it is a limited decision grounded in Biden\u2019s and OSHA\u2019s inappropriate power-grab to push \u201cvaccines\u201d on the public. The question remains: What happens if a state passes a COVID vaccine mandate in the regular course of business, which would circumvent the OSHA regulatory-based and constitutional failures explained by the Fifth Circuit opinion that warranted the temporary injunction? The individual Liberty Clause-based answer will be provided in my next article for The Daily Clout.<\/p>\n Deana Pollard Sacks<\/strong>\u00a0is originally from Gig Harbor, Washington and attained law degrees from the University of Southern California and U.C. Berkeley. She is licensed to practice law in the \u00a0United States Supreme Court, California, and Washington. As a law professor, her scholarship has centered on civil rights, children\u2019s health and development, implicit bias, and regulation of dangerous speech. \u00a0She has authored numerous law review articles and was a contributing author in the groundbreaking book, Implicit Racial Bias Across the Law (Cambridge University Press, 2012). In 2014, she started a grassroots talk show, Meet The Professors (www.meettheprofessors.org<\/a>), to provide free public access to professors\u2019 expertise concerning \u00a0pressing social issues in a conversational and upbeat format. She joined the DailyClout team in 2021 and is the model legislation drafter.\u00a0<\/em><\/p>\n<\/div>\n
\nhttps:\/\/www.law.cornell.edu\/constitution\/tenth_amendment.)<\/p>\n
\nstrong showing of succeeding on the merits\u00a0 (to obtain a permanent injunction); 2) whether failure to issue a stay will cause irreparable harm; 3) whether issuing the stay will substantially injure opposing parties; and 4) whether the public interest supports a stay.<\/p>\n
\nguard on a lonely night shift.\u201d There is no exception for natural immunity, which has been known for decades to be superior to vaccine-induced immunity, rendering it further overinclusive (it would force naturally immune persons to take endure the unnecessary risks of vaccination or be bogged down with a weekly test despite having superior natural immunity).<\/p>\n
\ncontradicts prior OSHA pronouncements concerning COVID).<\/p>\n<\/div>\n\n
\n