The Fifth Circuit Says The Biden Administration Abused Its Power And The Constitution. Better Impeach Him, Then!

Vaccine mandate

Just kidding! Presidents often try to stretch the already rubber boundaries of what the Constitution and even the law requires, only to get slapped down by the courts. This kind of thing was only grounds for impeachment (according to the Trump Deranged, the mainstream media pundits and Democrats) when Donald Trump did it.

But President Trump never tried anything as egregiously dictatorial as the vaccine mandate.

Tell us again who is “a threat to democracy.”

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, issued a ruling at the end of this week upholding a stay of the mandate after temporarily halting the mandate last weekend in response to lawsuits filed by and legal groups. The Washington Post, telegraphing its bias as usual, calls them “Republican-aligned businesses and legal groups.” Since the mandate was wildly excessive and pretty clearly illegal, the question is why “Democratic–aligned” organizations don’t also oppose it. I guess that’s nor really much of a question.

The Post also emphasizes that the panel consisted of judges appointed by Reagan or Trump, because in Progressivese, that means the ruling is partisan. No, it really isn’t. It’s just right, as any fair reading of the opinion by Judge Kurt D. Engelhardt and joined by Judges Edith H. Jones and Stuart Kyle Duncan will reveal. Of course, none of your metaphorically screaming Facebook friends will read it.

You will, though, right? It’s pretty thorough and damning, as well as bit nasty, which any administration trying something like this deserves. (It’s better than an impeachment!)


[I]n its fifty-year history, OSHA has issued just ten [Emergency Temporary Standards]. Six were challenged in court; only one survived.  The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that “[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,” so “[t]hat power should be delicately exercised, and only in those emergency situations which require it.”…

This case concerns OSHA’s most recent ETS—the Agency’s November 5, 2021 Emergency Temporary Standard (the “Mandate”) requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests and wear a mask. An array of petitioners seeks a stay barring OSHA from enforcing the Mandate during the pendency of judicial review. On November 6, 2021, we agreed to stay the Mandate pending briefing and expedited judicial review. Having conducted that expedited review, we reaffirm our initial stay….

Many of the petitioners are covered private employers within the geographical boundaries of this circuit.5 Their standing6 to sue is obvious—the Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road….

The “traditional stay factors . . . govern a request for a stay pending judicial review.” Nken v. Holder, 556 U.S. 418, 426 (2009). Under the traditional stay standard, a court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

Each of these factors favors a stay here….

We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651 (statement of findings and declaration of purpose and policy). It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended 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…

On the dubious assumption that the Mandate does pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years,
 and which OSHA itself spent nearly two months responding to—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority….

…the Mandate at issue here is anything but a “delicate[] exercise[]” of this “extraordinary power.”  Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address…

…OSHA is required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces. Of course, OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.”…

Equally problematic, however, is that it remains unclear that COVID-19—however tragic and devastating the pandemic has been—poses the kind of grave danger § 655(c)(1) contemplates….For starters, the Mandate itself concedes that the effects of COVID-19 may range from “mild” to “critical.” As important, however, the status of the spread of the virus has varied since the President announced the general parameters of the Mandate in September. (And of course, this all assumes that COVID-19 poses any significant danger to workers to begin with; for the more than seventy-eight percent16 of Americans aged 12 and older either fully or partially inoculated against it, the virus poses—the Administration assures us—little risk at all.)…

….the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here….

That last, a deliberate jibe at John Kerry, signals the panel’s general level of annoyance, and it is well deserved. The mandate will eventually be ruled on by the Supreme Court after one of the more liberal Circuits rules differently, or perhaps sooner than that. This opinion signals to all but those in Progressiveland that believe in unicorns and Hobbits that the thing is doomed. Good.

The angry proto-totalitarians will argue, indeed are arguing, that the mandate is justified because it will speed the decline of the Wuhan virus threat. It probably will. They just don’t get it. Our values and system hold that the ends don’t justify the means when the means is the government infringing on basic human rights and liberties. The now totalitarianism-tending Left doesn’t like that about the Constitution or the United States.

As an ethicist, I don’t like that slippery slope. It goes from vaccinations, to mandated masks in the workplace, to mandated masks everywhere, to mandated speech supporting climate change edicts and “diversity.” Masks or no masks, we can recognize these people for what they are.

35 thoughts on “The Fifth Circuit Says The Biden Administration Abused Its Power And The Constitution. Better Impeach Him, Then!

  1. Jack wrote:

    As an ethicist, I don’t like that slippery slope. It goes from vaccinations, to mandated masks in the workplace, to mandated masks everywhere, to mandated speech supporting climate change edicts and “diversity.” Masks or no masks, we can recognize these people for what they are.

    Indeed, and this slope is very slippery. If OSHA can step outside it’s statutory construction as a workplace safety watchdog and, with the thinnest of veneers, regulate public health policy by deputizing business, is there anything they cannot regulate via this mechanism? Firearms? Speech? Anything? Bueller…?

  2. It’s also yet another example of this administration and its party trying to get around violating Constitutional protections by using private business as the middleman.

  3. Why is that last part a jab at John Kerry? I read it as a slap at Kamala Harris when she declared she wouldn’t take the vaccine if it came out under Trump but now supports it because, magically, it works.

    Don’t get me wrong. Kerry is a buffoon who should be ignored at all costs. I don’t remember Kerry saying something this stupid (but I won’t be surprised that he did – he’s John Kerry; QED) but he doesn’t lead OSHA; he’s off wreaking havoc on them world by promoting useless climate change initiatives.


  4. The 5th Circuit, noted by the mainstream media as one of the most conservative circuits (not like those much smarter, hipper, cooler folks on the 9th Circuit) is absolutely right. This was a complete overreach and attempt to expand governmental power. Never mind, I’m sure Biden will say soon, go right ahead and implement anyway, don’t let the other side try to run out the clock for 14 months until Congress flips and starts to interfere. He may loathe Andrew Jackson (just like all those smart, hip, cool folks do), but I’m sure he wouldn’t hesitate to tell the SCOTUS where to go just like he did.

  5. I’m deeply, deeply disturbed that the White House reaction to this was to say- I’m paraphrasing- ignore the court and continue on, businesses.
    I actually have a business. I have two employees. This final mandate as written does require me to test unvaccinated employees, which, I don’t even know how I would do that. The testing sites are miles away. I don’t want to. It’ll be an added expense, a time waster and they’ve had Covid, which is why they’re not vaccinated. It’s a breach of medical privacy for my employees and an intrusion on how we operate the business, and frankly, a waste of time and resources. It’s unnecessary. They are outdoors and operating more than 6’ apart or alone and we all have had Covid.
    Now let’s talk about the hospital. People have quit over the mandate. People have retired early or quit because they are now overwhelmed thanks to the unvaccinated quitting. Due to the mandate. Nice…now the hospital is severely understaffed because it was understaffed pre Covid.

    • And this administration will blame the problems being faced by this hospital (and many others) on the unvaccinated, thus justifying the very act that is exacerbating the problem. It’s sick and, I believe, Hanlon’s Razor aside, malicious.

      Why would hospital administrators record children admitted for broken limbs, accidents, etc., as COVID cases after they test positive, if not to “scare” parents into vaccinating their kids? Sure, pubic trust in every institution is being decimated, but at least they will get more vaccines administered?

      I cannot believe the amount of foot-shooting going on these days. It feels like so many institutions, industries, and corporations are going scorched earth, almost like they’re trying to provoke something big.

      • Soon the spigot of money needs to be shut off (has it been already?) for testing and positive cases and eventually vaccinations. Boom. No incentive to make a child who happens to have Covid and comes into the ER with a broken arm into a “positive hospitalized Covid case”

      • The industry will either blame the problems on the unvaccinated, or eventually blame the worker shortage on low wages. The workers have just figured out how much they’re worth! This is why we need a mandatory 30 dollar an hour minimum wage! And socialized medicine! And a new, OSHA-level oversight committee with the power to mandate more things which are ultimately for the greater good! Oh, you’ve got trouble, my friends! Right here in River City!

        You have to create the problems before you can sell them the solutions.

  6. You know, I seem to recall that one of the arguments for Biden was that it would give us a rest from all the chaos and tumult of the Trump years.

    How’s that working out for us so far?


    I also remember noticing that for a while FDR’s Democrats had a veto proof majority in Congress (don’t recall if Johnson did the first two years, but he was close). Biden acts like he has that sort of majority in Congress — but he doesn’t, so mostly the best he can do is ephemeral executive orders which will be revoked by his successor.

    I am really tired of presidents trying to rule by executive order, which at least the last three have done, albeit not nearly to the extent that Biden has. At least the bipartisan infrastructure bill did actually have some bipartisan input, no matter how distasteful some of the programs are.

    It’s been said, many times, that the Democrats are trying to get as much of their program in this year because they feel they only have one shot at it. If history and demographics are so much on their side, why would they think that way? Plus by going whole hog on the radical agenda, it’s kind of a self fulfilling prophecy that they will ensure their own defeat.

    If they governed wisely and got meaningful input from the other side — it is absolutely possible that the voters would keep them in power. Yes, I know that’s a fantasy world, but isn’t it still true?


    And finally, speaking of fantasy worlds, I have idle visions of 2022 where the voters are so disgusted that the GOP ends up with 2/3 majority in both houses of Congress. Not going to happen, of course, but wouldn’t that make life interesting?

      • So you’re not against other vaccine mandates, just one for a global pandemic?

        Why are they illegal and unnecessary for this virus and not others?

        • It’s the other way around. There are rare exceptions, like the polio epidemic, that may require mandated vaccinations. You haven’t read the 5th Circuit opinion, obviously. The point is explained very well.

          • I did read it.

            So why isn’t a global pandemic a rare exception?

            Why are vaccine mandates illegal and unnecessary for covid but okay for other ones (polio isn’t the only vaccine mandate).

            Thank you.

            • My answer is this: the shots for Wuhan virus are not vaccinations, and you and I and everyone else should probably stop labelling them as such. They are essentially flu shots, which mitigate the effects of the virus (like a flu virus), but do not prevent it. True immunizations – like polio, the measles, etc. – actually prevent the diseases.

              We do not have mandates for any flu virus shot. We should not for Wuhan shots, either.

                • Actually it is totally TRUE. If you would open your mind it would be obvious to you. You realize the FDA/CDC changed their definition of “Vaccine” so they could call this a vaccine? Don’t believe us go look it up.

                  And from your comments I doubt you read the full opinion.

                • If the Covid shots were actually vaccinations, the 1)Once vaccinated you wouldn’t be in danger of getting the disease (news flash: You are), and 2) You certainly wouldn’t need a booster after only a few months.

                  What the Covid shots do, as has become clear, is to mitigate your chances of becoming seriously ill or dying from Covid. Tellingly, no one is saying that the disease has mutated such that these treatments no longer work — in fact they’ve been at pains to assure us that the shots are as effective against the delta variant as for the original.

                  I got a polio vaccination as a pre teen. I also got a smallpox vaccination as a kid (don’t remember exactly when). No one has ever suggested that these vaccinations have worn off or need a booster. Interestingly, I don’t think there was ever a ‘mandate’ for all of us to get polio vaccinations. Certainly I seriously doubt anyone suggested that folks who’d already gotten polio needed to be vaccinated.

                  Whatever you want to call them, these shots are not vaccines in the usual sense of the word. They are an amazing accomplishment to be sure — true vaccines? Not so much.

                    • …none of what you said is accurate or correct.

                      Let’s see…..

                      So you can’t get Covid after getting the shots?

                      There was a polio vaccine mandate?

                      My polio and smallpox vaccines have worn off? Shouldn’t I have been told, then, to get a booster? Why have we not had further outbreaks?

                      The Covid shots don’t keep you from getting seriously ill or dying from Covid? If not, then what good are they?

                      Covid has mutated such that the original shots no longer give you protection? That wasn’t true of the delta variant — you’re saying there is a later variant or mutation that the shots are ineffective against?


                      What else about my post was not true? Please be specific. If you wish to refute my post, at least offer some arguments or even a little evidence.

                  • I cant reply to your comment but yes…eveything you said is wrong.

                    There is no vaccine that’s 100% effective. So yes, if you want long term protection from small pox, you need boosters.

                    Yes, we have mandated vaccines against smallpox and polio…why do you think it doesn’t exist anymore?

                    You really need to educate yourself because you don’t even know how vaccines work, or about the history of vaccine mandates in America.

                    You’re just another person in a very long line of anti-vaxxers who plagued (ha) this country with ignorance when it comes to vaccines.

          • Replying to Waldorf:

            There is no vaccine that’s 100% effective.

            People who receive MMR vaccination according to the U.S. vaccination schedule are usually considered protected for life against measles and rubella.

            Who do you think is promulgating such anti-vaxxer nonsense? Hmmm, a little group called the CDC.

            Looking at it a different way, would you get a vaccine if the risk of death from the vaccine was about 3%?

            John Adams did.
            People have referenced Washington requiring his army to be vaccinated — that was the risk of that vaccine, 3% mortality, don’t know about the rate of disfigurement, etc.

            From the “Immunization Action Coalition” website, “Adults who have completed a routine series of polio vaccine are considered to have lifelong immunity to poliomyelitis,”

            As well, looking at the CDC recommendations for adults on that same website, almost none of the diseases adults should be vaccinated against have boosters recommended. The primary exceptions are influenza, and the Tdap vaccine (Tetanus, diphtheria, pertussis), which has a 10 year schedule.

            So, no it’s not the case that you have to be immunized over and over again for every vaccine.


            Upon further research, I’ll admit to being wrong about mandates on polio and smallpox. Most of the mandates have been implemented as requirements for children entering school. Without exception, I believe, they are all implemented at the state or local level, not the federal government.


            Just a commonsense question: Would we have been satisfied with the smallpox vaccine (a disease with perhaps a one third mortality rate), if we knew that the vaccine did not, in fact, keep you from getting smallpox? Somehow I doubt it.


            Despite what you assert, I am not in any way an anti-vaxxer. My reasons for getting the Covid shots were mine and not any of your business, but I did get the shots.
            I don’t believe that the federal government has the power to require vaccinations — this falls under the policing powers of the state, which the states have and the federal government does not.

  7. I posted this on Usenet newsgroups and here is a response.

    Actually, if it were true that vaccine mandates were dictatorial, Mr.
    Jack Marshal would have named dictators like Stalin, Hitler, etc
    issuing such mandates. He can’t because the realm of public health is
    about compassion for society’s vulnerable and dictators lack such
    compassion for others b/c they’re attracted to only having power for
    themselves and see compassion for others as only weakness.

    Bottom line:
    Mr. Jack Marshal is an unethical liar. May GOD continue to kill folks
    like anti-vaxxer anti-masker (i.e. disease spreading evil-doer) Mr.
    Marshall with COVID-19 in order to continue to convince others to not
    be like them, in the name (John 16:23) of LORD Jesus Christ of
    Nazareth. Amen.

    “It will continue to be done as you’ve asked.” — Holy Spirit
    (referring to John 16:23)

    “In that day you will no longer ask Me anything. Very truly I tell
    you, My Father will give you **whatever** you ask in My name.” (John
    16:23 w/ added **emphasis**)

    (link removed)

    Laus DEO.

    – Andrew B. Chung

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