Biden vaccine mandate legal battle heads to federal appeals court with GOP-appointed majority

People chant anti-government slogans as they arrive at City Hall to protest the mandate of a COVID-19 vaccine in New York City, October 25, 2021.

Eduardo Munoz | Reuters

A federal appeals court with a certain Republican majority will decide the fate of President Joe Biden’s vaccine and testing requirements for private companies, casting more doubt about the survival of the policy that the White House says is central to the fight against Covid-19.

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

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

The US Court of Appeals for the Fifth Circuit had already delayed vaccine and testing requirements while it reviewed its legal status. Judge Kurt de Engelhart, in an opinion released Friday, said the policy was “fatally flawed” and raised serious constitutional concerns.

However, the Biden administration submitted a request Tuesday to the Multi-District Litigation Committee to consolidate lawsuits into a single court through random selection.

The Sixth District will now decide whether to permanently discontinue the new workplace safety rule from the Occupational Safety and Health Administration.

Republican prosecutors in at least 26 states have filed lawsuits against the vaccine and testing requirements, as have private companies and major industry groups such as the National Retail Federation, American Trucking Associations and the National Federation of Independent Business.

Meanwhile, labor unions are suing to expand requirements to include small businesses. The International Federation of Food and Trade Workers, the AFL-CIO and the International Federation of Service Employees filed petitions last week.

In its response to the Fifth Circuit last week, the Biden administration warned that halting the requirements “is likely to cost tens or even hundreds of lives per day” as the Covid virus spreads. The White House has repeatedly said the virus poses a serious risk to workers, citing the staggering death toll and high transmission rates in counties across the United States.

The Department of Labor and Justice confirmed that the Occupational Safety and Health Administration, 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 January 4 to ensure their entire employees are vaccinated with two doses of the Pfizer or Moderna vaccines or one of the J&J vaccines. After that, unvaccinated employees must submit a negative Covid test weekly to enter the workplace. Unvaccinated workers must begin wearing masks indoors in the workplace starting December 5.

The Occupational Safety and Health Administration (OSHA) has released the vaccine and testing requirements through a Emergency Low-Use Authority, allowing the agency to shorten its normal rule-making process if the Secretary of Labor determines that a new workplace safety standard is necessary to protect workers from significant danger.

Before the pandemic, the Occupational Safety and Health Administration (OSHA) had not issued an emergency safety standard since 1983. Courts had suspended or overturned four of the agency’s 10 emergency standards before vaccine and testing requirements. Part of the fifth criterion was evacuated like this.

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

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