November 17, 2021

Why Biden's vaccine mandate now faces an 'uphill battle' on appeal

Daily Briefing

    The U.S. Judicial Panel on Multidistrict Litigation on Tuesday randomly assigned lawsuits against President Biden's Covid-19 vaccine mandate for large employers to the Court of Appeals for the Sixth Circuit in Cincinnati, a development that experts say could mean the mandate faces an "uphill battle."

    Resource library: How health care organizations can navigate vaccine mandates and other issues

    Lawsuits sent to federal court in Cincinnati

    A court clerk from the judicial panel randomly selected the Sixth Circuit appeals court out of a drum containing 12 regional appeals courts, a procedure used to consolidate multiple cases regarding the same issues, the New York Times reports.

    Biden's mandate would require all companies with at least 100 employees require unvaccinated workers to wear masks indoors beginning Dec. 5 and undergo weekly testing at work beginning Jan. 4. The lawsuits filed against the mandate argue the Occupational Safety and Health Administration (OSHA) lacks the authority to issue the regulation as written.

    The Biden administration has argued the mandate is necessary to protect workers from the Covid-19 pandemic, and that blocking the mandate "would likely cost dozens or even hundreds of lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous costs. That is a confluence of harms of the highest order."

    Earlier this month, a three-judge panel at the Court of Appeals for the Fifth Circuit in New Orleans blocked the mandate, saying it "grossly exceeds" OSHA's authority.

    The panel argued that the law creating OSHA and allowing it to issue "emergency" rules protecting workplace safety was not intended by Congress "to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways."

    The panel instructed the Biden administration to "take no steps to implement or enforce" the mandate, saying that states and businesses challenging it "show a great likelihood of success on the merits."

    An 'uphill battle' for the vaccine mandate

    The move to the Sixth Circuit appeals court means the mandate "faces an uphill battle and then some," according to Sean Marotta, a partner at the law firm Hogan Lovells.

    Of the Sixth Circuit appeals court's 16 judges, 11 were appointed by Republican presidents.

    "Overall, the Sixth Circuit may not be as hyper-conservative as the Fifth Circuit, but it is among the country's most conservative circuits," Lawrence Gostin, a law professor at Georgetown University, said. "This isn't good news for the Biden administration."

    "This is a good draw for the mandate challengers, one of the best they could have hoped for," Marotta said. Marotta added the difficulty of the lawsuit likely will depend on which three judges from the Sixth Circuit are randomly selected to preside over the case. Alternatively, the court may decide to have the case presented before the full bench, as opposed to a three-judge panel. (Savage, New York Times, 11/17; Rainey, Politico, 11/16; Kruzel, The Hill, 11/16; Hsu, NPR, 11/16)

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