People shout anti-government slogans as they arrive at City Hall to protest the introduction of the COVID-19 vaccine in New York, October 25, 2021.
Eduardo Muñoz | 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 businesses, further doubting the survival of the policies the White House sees as central to the fight against Covid-19.
More than two dozen lawsuits were consolidated in the US Sixth Circuit Court of Appeals on Tuesday challenging Biden’s policies. Former presidents George W. Bush and Donald Trump have appointed 11 of the 16 judges on the panel, while former presidents Bill Clinton and Barack Obama have appointed five.
The case against the policies of the Biden administration will be tried by a panel of three judges, but many expect the Supreme Court to decide in the end.
“Once the panel of judges is chosen, usually at random, the first question they will have to answer is whether to maintain or cancel the deferral prescribed by the Fifth Circuit,” David Vladek, a law professor at Georgetown University, told CNBC.
The US Court of Appeals for the Fifth Circuit has postponed the vaccine and testing requirements while it reviews their legal status. Judge Kurt D. Engelhardt, in a statement released on Friday, said the policy was “fatally flawed” and caused serious constitutional problems.
Nonetheless, the Biden administration on Tuesday filed a request with a multi-window judicial commission asking them to randomize the claims in a single court, which tasked the Sixth Circuit with deciding whether to permanently suspend the mandate.
Carl Tobias, a law professor at the University of Richmond, said District Six is less conservative than District Five. However, the randomly chosen commission will likely consist of two Republican appointees and one Democratic nominee, he said.
“The presidential appointing party is a rough measure of how any judge can rule on this complex appeal,” Tobias told CNBC.
A new mandate – a workplace safety rule from the Occupational Safety and Health Administration – requires businesses with 100 or more employees to fully vaccinate their employees with two doses of Pfizer or Moderna vaccine or one dose of Johnson & Johnson vaccine by January 4. … After that date, unvaccinated employees must take a negative Covid test weekly in order to start working. Unvaccinated workers should start wearing masks indoors in the workplace from 5 December.
The clock is ticking. According to Tobias, the judges can reach their ruling before the January 4 deadline through an extremely fast track, but the losing party will almost certainly appeal to the Supreme Court.
Republican attorneys general in at least 26 states have filed lawsuits against vaccine and testing requirements, as have private companies and major industry groups such as the National Retail Federation, the American Freight Forwarders Associations and the National Federation of Independent Businesses.
Trade unions, meanwhile, are filing lawsuits to extend the claim to small businesses. The Food and Trade Workers ‘International, AFL-CIO and the Service Workers’ International Union filed petitions last week.
The Biden administration warned in its response to the Fifth District last week that ending the demands “will likely cost tens or even hundreds of lives a day” as Covid spreads. The White House has repeatedly stated that the virus poses a serious threat to workers, pointing to a staggering death toll and high transmission rates in counties across the United States.
The Labor and Justice Departments argued that OSHA acted within its powers set by Congress.
OSHA has issued vaccine and testing requirements through a little-used emergency authority, allowing the agency to shorten the normal rule-making process if the Secretary of Labor determines that a new workplace safety standard is necessary to protect workers from serious hazards.
Prior to the pandemic, OSHA had not issued emergency safety standards since 1983. Courts have suspended or canceled four of the 10 safety standards issued by the agency prior to the introduction of vaccine and testing requirements. The fifth such standard has been partially canceled.