The Ohio-based U.S. Court of Appeals for the Sixth Circuit ruled late Friday that OSHA does have the authority to administer President Joe Biden’s vaccine mandate for private businesses with 100 or more employees. This measure would force employees to provide proof of vaccination or submit to weekly testing and mask requirements.
The Washington Post reported that the DOJ “had asked the court to clear the way for the policy.”
The court filed an emergency motion to dissolve the stay put in place by the Louisiana-based Fifth Circuit last month.
This decision triggered a series of immediate electronic appeals to the Supreme Court.
Multiple emergency petitions are being electronically filed with #SCOTUS. Must assume both sides had them drafted in advance, simply waiting to plug in the particulars from the 6th Circuit's opinion. Thx to those who've sent me copies of their filings.
— Shannon Bream (@ShannonBream) December 18, 2021
Time is of the essence because the mandate is scheduled to take effect on Jan. 4.
The 2-1 ruling was made by a three-judge panel. The opinion was written by Judge Jane B. Stranch, an Obama appointee. Also in the majority was Judge Julia Gibbons, a George W. Bush appointee. Dissenting was Judge Joan Larsen, who was appointed by Donald Trump.
Judge Stranch wrote: “The record establishes that COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs. To protect workers, OSHA can and must be able to respond to dangers as they evolve.”
Big win for Biden admin at 6th Circuit, as panel votes, 2-1, to allow OSHA vaccine mandate on private employers over 100 ppl to take effect. Majority: Judges Julia Gibbons (GW Bush), Jane Stranch (Obama). Dissent: Joan Larsen (Trump). Doc: https://t.co/nevzv0aivM
— Josh Gerstein (@joshgerstein) December 18, 2021
UPDATE: Business groups have already gone to #SCOTUS to seek re-halt of mandate. Doc: https://t.co/eDZbZkq7F6, via @MyahWard: https://t.co/zYpyeIoJu6 https://t.co/U9CAXJVO1T
— Josh Gerstein (@joshgerstein) December 18, 2021
5th Circuit put OSHA private employer mandate on ice. 6th Circuit just dissolved the 5th Circuit order. Looks like this is headed straight to #SCOTUS. Guess I know how I'll be spending Christmas "break" 😉
— Shannon Bream (@ShannonBream) December 18, 2021
How the Supreme Court will rule on this mandate is anyone’s guess at this point.
Although the Supreme Court currently has five conservative justices, decisions made by Trump appointees Brett Kavanaugh and Amy Coney Barrett have surprised us.
(Note: Chief Justice John Roberts is nominally a conservative, but he is not considered a reliable conservative vote.)
The decision to consolidate the numerous legal challenges to this mandate from Republican states, large private businesses, and activist groups, was made via a ping pong ball lottery.
According to CNN, “the DC-based Judicial Panel on Multidistrict Litigation conducted the lottery. Under the unusual system mandated by Congress, officials will [write] the name of each of the judicial circuits with an active challenge on a ping pong ball.”
The balls were “then placed in a solid wood raffle drum. Panel clerk John Nichols drew the ball, with an operations supervisor as the signed witness, according to court records.”
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