Lawsuits Against National Vaccine Mandate in USA (1 Viewer)

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Linda

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Figured this one needs its own thread because it is complicated. I'll keep it as brief as possible and am borrowing some info from the discussions about the challenges to the 2020 election.

The Resident came out with a mandate saying all workers in any company with 100 or more employees must be fully vaccinated or submit to weekly covid testing. Neither a president nor a resident has the power to execute such a mandate because each state retains substantial rights for governing their populations. The USA is a republic and not a democracy. The powers of the three branches of the federal government (legislative, judicial, executive) are outlined in the constitution and the subsequent amendments. This is one place where arguments may take place.

The Resident is attempting an end-run around this question by directing OSHA (Occupational Safety and Health Administration) to draw up and implement emergency rules about the vaccine. This office was signed into law in 1970 and charged with setting and enforcing safety and health standards for most of the workers of this country. Expect challenges about the difference between conditions of working environments (machines, etc.) and a virus.

Now we need to look at the judicial process. To challenge a federal order, people, companies, organizations, or states must work their way through the judicial court system. In this case, this process will be the federal courts in the yellow boxes, and given the entities involved, the appeal was filed in the Fifth Circuit.

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There are several other states that have filed similar challenges in their district courts. If all states that indicated opposition filed, I think it will cover 8 of the 11 district courts. If I were working on this, I would have gotten together with the the other attorneys general and developed a strategy based on knowledge of the courts and the Supreme Court Justices associated with these courts. For example, South Dakota and Missouri are in the 8th District and Florida, the 11th.​
Supreme Court justices are assigned to the appellate circuit courts, and their role is to oversee the appeals process, and when petitioned, to rule directly. Justices, Alito (3rd and 5th), Kavanaugh (6th and 8th), Barrett (7th), Gorsuch (10th), and Thomas (11th) have judicial records that lean more to the constitution, rather than making new interpretations of the laws. However, some of the recent rulings have us confused.​
One of the main issues that came up in the 2020 vote challenge was standing, which means does this issue touch you directly. (While voter fraud affected the country as a whole, what went on in Arizona did not affect Texas directly.) I am interested in the parties that are participating in the appeal filed by Texas, Louisiana, and Mississippi (5th Circuit). It is a variety of businesses and churches, as well as states. Here is the whole list.​
BST Holdings, L.L.C.; RV Trosclair, L.L.C.; Trosclair Airline, L.L.C.;Trosclair Almonaster, L.L.C.; Trosclair and Sons, L.L.C.; Trosclair ; Trosclair, Incorporated; Trosclair Carrollton, L.L.C.; Trosclair Claiborne, L.L.C.;Trosclair Donaldsonville, L.L.C.; Trosclair Houma, L.L.C.; Trosclair Judge Perez, L.L.C.; Trosclair Lake Forest, L.L.C.; Trosclair Morrison, L.L.C.; Trosclair Paris, L.L.C.; Trosclair Terry, L.L.C.; Trosclair Williams, L.L.C.; Ryan Dailey; Jasand Gamble; Christopher L. Jones; David John Loschen; Samuel Albert Reyna; Kip Stovall; Answers in Genesis, Incorporated; American Family Association, Incorporated; Burnett Specialists; Choice Staffing, L.L.C.; Staff Force, Incorporated; Leadingedge Personnel, Limited; State of Texas; HT Staffing, Limited; doing business as HT Group; The State of Louisiana; Cox Operating, L.L.C.; Dis-Tran Steel, L.L.C.; Dis-Tran Packaged Substations, L.L.C.; Beta Engineering, L.L.C. Optimal Field Services, L.L.C.; The State of Mississippi; Gulf Coast Restaurant Group, Incorporated; The State of South Carolina; The State of Utah; Word of God Fellowship, Incorporated, doing busines as Daystar Television Network.

The Liberty Justice Center is representing several of the petitioners that include Trosclair (supermarket company in Louisiana and Mississippi) and CaptiveAire (a commercial ventilation company with employees in Texas). Here is a summary of the challenge.

The Liberty Justice Center is challenging the mandate on grounds that it exceeds OSHA’s statutory authority under the Occupational Safety and Health Act.
  • First, OSHA’s authority is limited to workplace-related hazards, but the risk of COVID-19 infection is a society-wide danger.
  • Second, OSHA cannot show that COVID-19 is a grave danger for all employers with 100 or more employees because only a few months before, it concluded that COVID-19 was only a grave danger to healthcare employers. Additionally, whether COVID is a grave danger in a workplace depends on individual employees’ age and health, not how many co-workers they have.
  • Third, because the mandate applies regardless of individual employee’s risk and difference in workplace conditions, it is not narrowly tailored as emergency standards are required to be.
  • Finally, OSHA’s statutory authority to protect employees from “new hazards” must be read to exclude COVID in light of the preceding language: “substances or agents determined to be toxic or physically harmful.” Otherwise, the agency could promulgate any regulation that would have the arguable effect of preventing the spread of a communicable disease.

So - probably more than you wanted to know, but in case you were confused about the process, I hope this helps.
 
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A second suit has been filed with the 8th Circuit Court of Appeals. Keep an eye out for the response to this one, as well as more petitions in other circuit courts.

Missouri Attorney General Eric Schmitt today co-led an eleven-state coalition with Montana, Arizona, and Nebraska in filing a lawsuit against Joe Biden and the Biden Administration to halt their vaccine mandate on private employers with more than 100 employees. Missouri and the coalition of states are the first states to file suit against the vaccine mandate on private employers.
Five private employers joined Missouri’s challenge as well. A Petition for Judicial Review was filed in the United States Court of Appeals for the Eighth Circuit earlier this morning, and a Motion for Stay is expected to be filed soon.
The petition states, “This mandate is unconstitutional, unlawful, and unwise. The federal government lacks constitutional authority under its enumerated powers to issue this mandate, and its attempt to do so unconstitutionally infringes on the States’ powers expressly reserved by the Tenth Amendment. OSHA also lacks statutory authority to issue this mandate, which it shoe-horned into statutes that govern workplace safety, and which were never intended to federalize public-health policy.”
The petition also states, “For over a century, the U.S. Supreme Court has recognized that policies on compulsory vaccination lie within the police powers of the States, and that ‘they are matters that do not ordinarily concern the national government.’ Until quite recently, the Biden Administration agreed. The White House stated on July 23 of this year that mandating vaccines is ‘not the role of the federal government.’ But on September 9, 2021, that position underwent a dramatic reversal. The President announced several sweeping vaccine mandates, including a vaccine mandate to be issued by OSHA that applies to all employers who employ more than 100 employees. OSHA published this ‘emergency’ mandate two months later, crafting an elaborate post hoc justification for a policy that the President had already dictated that it would impose.”

The petitioners include 11 states and several private businesses.

STATE OF MISSOURI, STATE OF ARIZONA, STATE OF NEBRASKA, STATE OF MONTANA, STATE OF ARKANSAS, STATE OF IOWA,
STATE OF NORTH DAKOTA, STATE OF SOUTH DAKOTA, STATE OF ALASKA, STATE OF NEW HAMPSHIRE, STATE OF WYOMING, AAI, INC., DOOLITTLE TRAILER MFG., INC., CHRISTIAN EMPLOYERS ALLIANCE, SIOUX FALLS CATHOLIC SCHOOLS D/B/A BISHOP O’GORMAN CATHOLIC SCHOOLS, HOME SCHOOL LEGAL DEFENSE ASSOCIATION, INC.
 
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Another component of the OSHA rules - they are required to publish the rules in the Federal Register for comments from the public. Also, they are required to reply on the record to each and every comment. People might want to take part in this civic process. Read a few pages and find something with which you disagree. I've seen a few, and I was left wondering who in the world wrote some of this tripe.

 
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and to lighten up the news.....

 
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Lots to catch up.

Suits regarding the Resident's mandate via OSHA have been filed in the 5th, 8th, and DC Court of Appeals. The 5th Circuit Court issued a stay and gave OSHA until 5 PM to file a response. I've not found anything about the response, but did find this explanation of what could happen.

If additional challenges are filed in multiple circuit courts of appeals, then the Fifth Circuit may lose jurisdiction to hear the case under an obscure "lottery" process that may ultimately result in the case being transferred to another court.
If that happens, then the United States Government will likely ask the court to which the case has been transferred to vacate the Fifth Circuit's stay.
If, however, the case remains with the Fifth Circuit, then the Government will likely ask the U.S. Supreme Court to intervene.
These next steps may (or may not) be revealed in the next few days. We will continue to monitor and provide updates about the status of all related legal proceedings.
In the meantime, employers must realize that the ETS has not been repealed; it has merely been suspended pending resolution in the courts.
For how long? Nobody knows. But we know this: it may be revived, perhaps with head-snapping speed, and it remains loaded with time-consuming requirements that employers with 100 or more employees must complete by specified dates, such as (for one of many possible examples) the requirement to determine the "vaccination status" of each employee, obtain acceptable proof of vaccinations, and maintain records and rosters of employees' vaccination status that, in accordance with the ETS, must be completed by December 5, 2021.

I believe the old adage - Clear as mud - applies here.

However, two other news items popped up and are of great interest to me because they have the ability to sink the mandate ship.

First - Other scientists are speaking up within the NIH (Fauci's fiefdom) and are telling a different story about natural immunity and the insanity of giving vaccines during a pandemic. Should these ideas prevail at the conference, they will be in opposition to everything Fauci has said and potentially gut the OSHA rule. This conference is set for December 1st, and I hope it takes place.

WSJ reported Tuesday that vaccine mandates are sparking debates and controversy within the NIH, which has scheduled a Dec. 1 live-streamed roundtable session over "the ethics of mandates". The seminar is one of four ethics debates to be held this year. These debates will be accessible to all of the NIH's 20K staff, along with patients and the public.
The Dec. 1 ethics debate was set up after a senior infectious-disease researcher pushed back against the growing drive for mandates. Dr. Matthew Memoli, who runs the clinical studies unit within the Dr. Fauci-controlled NIAID, both opposes vaccine mandates and has declined the vaccine himself, arguing that jabs should be reserved for the vulnerable, the elderly and obese Americans.
Memoli, who has served at the agency for 16 years and recently received an NIH director's award, even pushed back against the mandates in an email to Dr. Fauci.
"I think the way we are using the vaccines is wrong," he said to Dr. Fauci in an email on July 30.
Memoli argues that "blanket vaccination of people at low risk of severe illness could hamper the development of more-robust immunity gained across a population from infection," per the WSJ.
It's not like he's just making this stuff up. At least one major study conducted by Israel showed that immunity produced by natural infection is more effective, and longer lasting, than vaccine-induced immunity.
At least one senior bioethicist at the NIH acknowledged that there's "a lot of debate" about vaccines.
The second news item comes from Florida and proposes a novel end-run around the OSHA end-run. A bill has been put forth in the state legislature to opt-out of federal oversight of worker safety with a comparable state-run office of worker safety. Returning rights to the states and away from federal over-reach has been gaining strength for some time, and if possible, this one really will tip the balance. It bears watching because it is like when the bully comes up against the really smart person - always interesting.

 
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The second news item comes from Florida and proposes a novel end-run around the OSHA end-run. A bill has been put forth in the state legislature to opt-out of federal oversight of worker safety with a comparable state-run office of worker safety.
I just learned something new (via Clif) - 22 states have unique OSHA plans, but how they might work in this case is unknown. Dang, my state is not one of them.

 
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Hot off the presses - 5th Circuit Court of Appeals upholds the stay on the OSHA emergency rule about forcing vaccinations in companies with 100 or more employees. To recap - the State of Texas and others filed a plea for a stay of the OSHA rule that was to take partial effect in December 2021 and full effect in January 2022. The court looked at the arguments and granted a temporary stay until the other side responded. Today the court responded with a stay pending review, which means OSHA may not continue on with their implementation until a formal review is completed. Now how that will proceed, where, and in what time period is unknown right now.


I was surprised at the tone of the ruling. It really lights into the thinking behind OSHA's mandate. You might have the same response as I did - DANG!

We next consider the necessity of the Mandate. The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense. Page 13​

First, the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. Cf. NFIB v. Sebelius, 567 U.S. 519, 522 (2012) (Roberts, C.J., concurring); see also id. at 652–53 (Scalia, J., dissenting). And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power. Page 16​

For these reasons, the petitioners’ motion for a stay pending review is GRANTED. Enforcement of the Occupational Safety and Health Administration’s “COVID-19 Vaccination and Testing; Emergency Temporary Standard”22 remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.23
In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order. Page 21​
 
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Curious and curiouser - that is a good summation. States are fighting back because they retain a whole list of rights, rather than the federal government, while the federal government is trying to grab every point of governance. The latest is from the resident's nominee for comptroller of the currency in the Department of the Treasury, who wants all bank deposits to placed within the Federal Reserve and not in local banks, but I digress.....


No Oklahoma Guardsman will be required to take the COVID-19 Vaccine,” Army Brig. Gen. Thomas Mancino wrote in a Thursday memo. The memo was at odds with a Defense Department directive that the "total force" - including the National Guard - must be vaccinated against COVID-19.
Mancino noted in the memo that Oklahoma Gov. Kevin Stitt is the organization's “lawful Commander in Chief” when not under federal orders, implying that Stitt - not Defense Secretary Lloyd Austin - has the final call on any vaccine mandate.
Mancino wrote in the memo that "no negative administrative or legal action will be taken" against guard members who do not get the vaccine.
Mancino was appointed on Wednesday as adjutant general of the Oklahoma National Guard, replacing former Adjutant General Michael Thompson.
Governor Kevin Stitt earlier this month asked Austin to suspend the vaccine mandate for members of the Oklahoma National Guard.
“It is irresponsible for the federal government to place mandatory vaccine obligations on Oklahoma national guardsmen which could potentially limit the number of individuals that I can call upon to assist the state during an emergency,” Stitt wrote in a Nov. 1 letter to Austin.

The battle lines are being drawn. It is going to be difficult to cut off the middle of the country because this is the place from which most of the food comes. Of course, the resident and surrounding minions are not competent enough to recognize that.
 
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You know how we all understand that the internet is forever and to be careful what you post because it will come to light - especially if you are in the public eye? Well, someone forgot, and it is causing a problem. The resident's chief of staff just handed one of the main points of the cases about the mandate to the petitioners - that it is in fact an attempt to ignore the constitution.

Right after Biden announced his vax mandate in September, his dirt bag Chief of Staff Ron Klain retweeted MSNBC’s Stephanie Ruhle bragging that OSHA enforcing the mandate was the “ultimate work-around for the federal government.”
Courts consider intent and purpose of policies so Klain’s retweet admitting the OSHA rule was a “work-around” to implement the illegal mandate immediately put Biden’s vax agenda in jeopardy.
Constitutional scholar Jonathan Turley blasted Ron Klain for retweeting Stephanie Ruhle’s OSHA tweet and said Klain effectively became a witness for the challengers.
“The retweet was breathtakingly daft on the eve of litigation over the order. It is reminiscent of President Biden admitting that his own White House counsel and their preferred legal experts all said that the eviction moratorium extension was likely unconstitutional,” Jonathan Turley told Fox News in September.
“Courts will now be asked to ignore the admission and uphold a self-admitted evasion of constitutional limits,” Turley added. The “problem is that the thing being ‘worked around’ is the Constitution.”
“Klain effectively became a witness for the challengers in labeling the order an evasion or subterfuge designed for the courts. Klain leaves the courts in the unenviable position of ratifying an order that the Administration admits is a mere work around to evade constitutional limits. It is akin to claiming self-defense in an assault case while saying that it was the best way to shoot the guy,” Turley said.
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No Oklahoma Guardsman will be required to take the COVID-19 Vaccine,” Army Brig. Gen. Thomas Mancino wrote in a Thursday memo. The memo was at odds with a Defense Department directive that the "total force" - including the National Guard - must be vaccinated against COVID-19.
A little update - this is going to be an interesting fight between state and federal rights. We have federal military - regular army, etc. that are not allowed to function in a fighting capacity within the borders of the USA. However, they can be called in as support services, such as medical, which we saw in 2020 when two hospital ships docked in the ports of New York and Los Angeles. Then we have the state national guard (army and Air Force), which generally is made up of former federal service men and women, although new recruits who pass the entry qualifications are accepted. These troops are fully armed and may operate within the USA. Sometimes they are called into active duty and sent to other states or countries. (Remember the National Guard troops in DC during the inauguration?) When they are in their states, they operate under Title 32, and the commander-in-chief is the state governor. When they are called up for other duty, they operate under Title 10 and are under the command of the regular army or Air Force. This is where the fight is occurring with the Oklahoma National Guard that is stationed within the state at this time.

The Stitt administration (Oklahoma) is confident they have the authority to defy the Biden administration - as top spokesperson, Charlie Hannema, told the Army Times that the "only way Oklahoma would ‘forfeit’ any federal funding for failing to comply with Title 32 would be to ignore the lawful order of the dually elected civilian authority, i.e. The Governor of Oklahoma."
National Guard Bureau spokesperson, Air Force Maj. Matthew Murphy, begged to differ - telling Stars & Stripes that the vax mandate was a "legal gray area that would have to be reviewed by our lawyers."
"This is where the difference between Title 32 and Title 10 becomes a real becomes an issue," said Murphy. "In most instances, the guardsmen are in their Title 32 capacity, which means they’re on state duty. In order to be federalized, they have to be on Title 10."
 
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All righty - now back to the cases filed in District Courts in response to the OSHA covid rules -

When similar cases are filed in different district courts, there is a highly complex process to bring them together in one court - someone writes the numbers of the different courts on ping-pong balls, all are dropped into a bin, someone reaches in a draws out the winner.

In this instance, the case ends up in the 6th District Court (Tennessee, Kentucky, Ohio), which is assigned to Brett Kavanaugh. Three judges from the 6th District will be selected to preside over the formal review of the new OSHA rule. We are in the holiday season here - first my birthday, then Thanksgiving, followed by Christmas - many days off taken at this time. So, who knows how things are going to roll.

Although the 6th Circuit has twice as many judges appointed by Republican presidents, the three-judge panel (which has yet to be determined) could still be stacked with liberals.
 
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And OSHA calls a pause

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

What will happen next is unknown. However, by officially calling a pause, it may indicate that in the event of the mandate being ruled legal, the countdown would not revert to the original time line.
 

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