OSHA Vaccine Mandate Case

Re: Legality of OSHA, The Labor Dept & the Biden Administration to Mandate vaccines as condition of employment


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Facts of the Case

  • Dates: Nov 6 & 12, 2021
  • Location: New Orleans, USA
  • Court: 5th Circuit Court of Appeals
  • Case #: 21-6085
  • Plaintiff: 27 states + companies & more
  • Defendant: OSHA and the Biden Administration
  • Trial Type:
  • Judge: Kurt D. Engelhardt
  • Status: End
  • Verdict: for the Plaintiff



President Joe Biden pushed OSHA (Occupational Safety and Health Administration) to implement regulations demanding that all businesses with 100 or more employers need to force all their employees to be vaccinated by January 4 or face mask requirements and weekly tests that the employees must pay for themselves. Additionally, under the mandate, employers are subject to fines of up to $13,653 per day for each employee that does not comply.  (3)

The next day (Nov 6, 2021), in response to a several groups of petitioners including several states, America First Legal and the Texas Public Policy Foundation, the 5th Circuit Court of Appeals halted this order until further investigation by the courts. The Biden administration defied this by putting out a statement that business should go ahead with the order.

In response the 5th Circuit Court of Appeals once again halted this order. At least 27 states filed lawsuits challenging the rule in several circuits.

The Biden administration has been encouraging widespread vaccinations as the quickest way to end the pandemic that they assert has claimed more than 750,000 lives in the United States. (2)

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A Federal Court has defended the Constitution from the Biden Administration’s efforts to remove the Rights of Employees to determine their own health needs and their authority over their own body.


Plaintiff’s Argument

The petition argues the mandate is unconstitutional because it:

– Violates the non-delegation doctrine: Congress did not give OSHA the power to enact a nationwide vaccine mandate, affecting 80+ million people, when it gave them the power to regulate workplace safety. Congress has not given OSHA the power to try and end pandemics. (3)

– Violates the Commerce Clause: The mandate applies even to companies that do business solely inside of Texas, and whose services never cross state lines.  States have a general police power; the federal government does not.  It is a government of enumerated powers, and it cannot do this by invoking the Commerce Clause. (3)

Statement From America First Legal President Stephen Miller: 

These imperial executive mandates are unlawful, unconstitutional, unacceptable, unconscionable and un-American. America First Legal and the Texas Public Policy Foundation have filed these historic lawsuits to defeat these illegal decrees and save our liberties and our constitutional system of government,” Stephen Miller said. (3)

Statement From America First Legal Vice President and General Counsel Gene Hamilton: 

Threatening the livelihoods of hard working Americans through federal mandates is the latest example of the Biden Administration’s executive overreach,” America First Legal Vice President and General Counsel Gene Hamilton said. “The Biden Administration does not have the authority to mandate that private businesses become de facto vaccine enforcers for the federal government. The mandate is patently unconstitutional and America First Legal is proud to partner with the patriots at TPPF to protect the rights of Americans from an Administration acutely dedicated to chipping them away,” Gene Hamilton said. (3)

Statement From General Counsel for Texas Public Policy Foundation Robert Henneke: 

Our clients believe that the decision to be vaccinated should be made by individuals and their doctors—not the federal government,” said Robert Henneke, general counsel for TPPF.  “In addition to turning private employers into federal vaccine enforcers, the rule will also result in many individuals leaving the workforce entirely, accelerating a trend that has devastated our economic recovery from the pandemic.” (3)

Our clients are standing up for themselves and their employees,  but ultimately, they are standing up for the right of every American to make their own medical decisions, based on advice from their doctors,” Robert Henneke said. (3)

Statement From Senior Attorney at Texas Public Policy Foundation Matt Miller: 

Throughout the pandemic, we have witnessed an unprecedented, unconstitutional, and never-ending expansion of government power,” said Matt Miller, senior attorney at TPPF.  “This mandate, which says to workers ‘take the vaccine or lose your job,’ represents a line that many people of good will simply will not cross. It is long past time for courts to step in and recognize that the power of the government is restricted by the Constitution, even in times of crisis.” 

The fact that the federal government had to dust off the emergency temporary standard, which is a rarely used and rarely successful vehicle for delivering OSHA requirements, tells you that the federal government knows it does not actually have the authority to issue this mandate. And the fact that the mandate completely ignores natural immunity and barely accounts for religious and medical exemptions tells you that this is more about forcing compliance with the federal government’s whims, rather than developing a sensible workplace safety rule,” Matt Miller said. (3)


Defendant’s Argument

…More information is needed…


Decision #1

After the first ruling (Nov 6, 2021) denying the OSHA mandate, Louisiana Attorney General Landry said the action stops President Joe Biden

“from moving forward with his unlawful overreach.”

“The president will not impose medical procedures on the American people without the checks and balances afforded by the constitution,” Landry said in a statement. (2)

The 5th Circuit, based in New Orleans, said it was delaying the federal vaccine requirement because of potential “grave statutory and constitutional issues” raised by the plaintiffs. The government must provide an expedited reply to the motion for a permanent injunction Monday, followed by petitioners’ reply on Tuesday


Decision #2

  • Writing for a panel of judges at the 5th Circuit Court of Appeals, Judge Engelhardt described the mandate as “fatally flawed” and said OSHA grossly exceed its legal authority. “…health agencies do not make housing policy, and occupational safety administrations do not make health policy. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty,” the judge wrote. (1)
  • Circuit Court Judge Kurt Engelhardt cited similar Commerce Clause and non-delegation doctrine arguments AFL and TPPF presented: 

 “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…The Commerce Clause  power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power.”

– “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…” (4)



  • Following the Nov 6 halt, The Biden administration said it is confident that the requirement, which includes penalties of nearly $14,000 per violation, will withstand legal challenges in part because its safety rules pre-empt state laws (2)

Statement from America First Legal Vice President and General Counsel Gene Hamilton: 

All Americans should be excited about the Fifth Circuit’s affirmation of its stay of the Biden Administration’s OSHA vaccine mandate. Under our Constitution, our federal government is one of limited powers—it is not an all-powerful government that can dictate very aspect of American life. President Biden is not a king. The Court’s rejection of his Administration’s assertion of these broad, sweeping powers should serve as a warning for other components of their radical agenda,” Gene Hamilton said. (4)


Following the ruling OSHA placed the following announcement on their site

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. (5)


On Dec 8, 2021 the US Senate Voted to Repeal Biden Vaccine Mandates for Employers. (6)

Two Democrats joined all 50 Republicans in Wednesday’s 52 – 48 vote to overturn President Biden’s vaccine mandate for private business with more than 100 employers. According to news reports, even if the measure secures enough votes to pass in the House, Biden will likely veto it. (6)

The Appeal in the 6th Circuit

In its Dec 1, 2021, ruling, the 6th Circuit reinstated Biden’s mandate—a 2-1 decision. The ruling sets up a likely showdown at the U.S. Supreme Court. [7]


The Supreme Court

On Jan 7 2022, the Supreme Court heard expedited arguments. They ruled in favor of the Plaintiff on Jan 13 2022 in a 6-3 unsigned opinion. [8]


Further Research



Update! Court Rules Against Mandate

source: Liberty Doll

WVA AG Morrisey Sues OSHA Mandate

source: Team Morrisey

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