Fight against Biden Covid vaccine mandate heads to appeals court with majority appointed by GOP

People shout slogans against the government as they arrive at city hall to protest the COVID-19 vaccine mandate in New York City on October 25, 2021.

Eduardo Munoz | Reuters

A federal appeals court with a GOP-appointed majority will decide the fate of President Joe Biden’s vaccine and testing requirements for private companies, casting further doubt on the survival of a policy that the White House says is essential in the fight against Covid-19.

More than two dozen lawsuits challenging Biden’s policies were consolidated into one in the United States Court of Appeals for the Sixth Circuit on Tuesday. Former Presidents George W. Bush and Donald Trump appointed 11 of the 16 judges on the bench, while former Presidents Bill Clinton and Barack Obama appointed five.

The case against the Biden administration’s policy will be heard by a three-judge panel, but it is generally expected to be ultimately decided by the Supreme Court.

The U.S. Court of Appeals for the Fifth Circuit had previously delayed vaccine and testing requirements while reviewing their legal status. Judge Kurt D. Engelhardt, in an opinion published Friday, said the policy was “fatally flawed” and raised serious constitutional issues.

However, the Biden administration on Tuesday filed a request for the multi-district litigation panel to consolidate cases in a single court by random selection.

The Sixth Circuit will now decide whether to stop the Occupational Safety and Health Administration’s new occupational safety rule for good.

Republican attorneys general in at least 26 states have sued vaccine and testing requirements, as have private companies and large industry groups such as the National Retail Federation, American Trucking Associations, and the National Federation. of Independent Business.

Unions, meanwhile, are suing to expand the requirements to cover small businesses. The International Union of Food and Commercial Workers, the AFL-CIO and the Service Employees International Union filed petitions last week.

The Biden administration warned in its response to the Fifth Circuit last week that stopping the requirements “would likely cost dozens if not hundreds of lives a day” as Covid spreads. The White House has repeatedly said the virus poses a serious danger to workers, highlighting the staggering death toll and high transmission rates in counties across the United States.

The Labor and Justice Departments maintained that OSHA, which issued the new rules, acted well within its authority as established by Congress.

Under the policy, companies with 100 or more employees have until Jan. 4 to ensure their staff are fully immunized with two doses of Pfizer or Moderna vaccine or one dose of Johnson & Johnson. After this date, unvaccinated employees must submit a negative Covid test every week to enter the workplace. Unvaccinated workers must start wearing masks inside the workplace from December 5.

OSHA has issued vaccine and testing requirements through a little-used emergency authority, allowing the agency to shorten the normal rulemaking process if the Secretary of Labor determines that a new workplace safety standard is needed to protect workers from serious harm.

Prior to the pandemic, OSHA had not issued an emergency safety standard since 1983. Courts have suspended or rescinded four of the 10 emergency standards issued by the agency ahead of vaccine and testing requirements. . A fifth of these standards have been partially abandoned.

David Vladeck, a law professor at Georgetown University, told CNBC there was a “high probability” that the case would eventually end up in the Supreme Court, where there is a Conservative majority.


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