Will The Fifth Circuit’s Stay Of Biden’s Vaxx Mandate Stick?

Over the weekend, in case you missed it, there was a rare bit of good political/legal news to be had. The federal Fifth Circuit Court of Appeals issued a stay of the Biden vaccine mandate as applied to employers with 100 or more workers per a huge lawsuit filed in Louisiana. From a press release by the Pelican Institute on Saturday…

Louisiana business owner, Brandon Trosclair and a group of workers from Texas have successfully halted the Biden Administration’s illegal vaccine mandate. The Fifth Circuit Court of Appeals has just ruled the OSHA mandate cannot be enforced “(b)ecause the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.”

Trosclair and six employees of CaptiveAire Systems are represented by the national law firm Liberty Justice Center and the Pelican Institute for Public Policy.

Brandon Trosclair, who employs nearly 500 people across 15 grocery stores in Louisiana and Mississippi said, “This is an incredible first victory for all Americans that the Fifth Circuit so quickly realized that the Biden employer vaccine mandate would cause great harm to businesses like mine. As the legal process continues, I look forward to sharing more of my story. This stay is a great first step by the court.”

Sarah Harbison, General Counsel at the Pelican Institute for Public Policy said, “I am confident that the courts will see this mandate for what it truly is: An attempt to make laws while bypassing Congress.”

Patrick Hughes, president and co-founder of the Liberty Justice Center said, “The Biden Administration’s vaccine mandate represents the greatest government overreach of our generation and we are elated that the court recognizes the ‘grave danger’ it poses not only to our clients, but all Americans. We look forward to having our day in court to fight this unconstitutional edict.”

Louisiana Attorney General Jeff Landry had made an emergency motion to the Fifth Circuit on Friday in order to get the stay in the Trosclair case. “The Court’s action not only halts Biden from moving forward with his unlawful overreach, but it also commands the judicious review we sought,” he said when the stay came down on Saturday. “The President will not impose medical procedures on the American people without the checks and balances afforded by the Constitution.”

There isn’t anything particularly substantial in the ruling, which was handed down by a three-judge panel including Jones, Duncan and Engelhardt. It’s short, and it simply says that “Because the petitions give rise to the belief that there are grave statutory and constitutional issues with the Mandate…” the court is issuing the stay.

But will that stick?

Writing at Reason, Eugene Volokh gives his take…

The order was issued per curiam, on behalf of all three judges on the panel (all of whom are conservative Republican nominees, for those keeping track). The stay of the mandate is only temporary. And – as the court suggests – may be lifted after “expedited judicial review,” which could happen very soon, given the accelerated briefing schedule laid out in order.

This case was filed by a group of employers and several GOP-controlled state governments. They likely chose the Fifth Circuit because they hoped its relatively conservative orientation would give them a greater chance of winning. An unusual statutory provision allows this case to be filed directly in a federal appellate court, as opposed to first having to be heard by a trial court (like nearly all other federal civil suits).

said previously that, while I think the vaccination mandate has significant legal vulnerabilities and might set a dangerous precedent if upheld, I also don’t really know how courts will react to the legal arguments against it. We still don’t know the answer to that question with anything like certainty. But the Fifth Circuit’s statement that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate” is at least a sign that the judges think there is a serious case to be made against the mandate. They clear do not believe the case is a slam dunk for the federal government.

Even if the Fifth Circuit panel ultimately rules against the Biden administration, that won’t necessarily be the end of the legal battle over this issue. Much depends on how broad the ruling is, and on what grounds. It’s possible OSHA could respond to a narrow ruling against it by limiting the scope of the mandate or adjusting it in some other way. It’s also possible that a lower-court ruling against OSHA might be reversed or limited by the Supreme Court.

Volokh says the “grave statutory and constitutional issues” language is a pretty good giveaway the mandate is in trouble.

The Biden administration probably should have seen this coming, but amazingly enough they seem to be leaning in – something we notice is an unfortunate feature of this regime. The more the people signal we don’t want something of theirs, the harder they push. Late last week it came out that Biden wants to impose this mandate on employers with less than 100 employees.

There is very little about this that makes sense, and the science behind it is suspect at best.

We know that the vaccine doesn’t work like a usual vaccine does. It doesn’t stop the spread of COVID. It doesn’t stop the vaccinated from contracting the virus or even having symptoms; breakthrough cases do happen, though there is evidence that the vaccinated are less likely to develop serious cases. It’s quite clear that vaccinated immunity is a lot less effective than natural immunity for those who’ve had the virus already.


Which means that the vaccine is more like a treatment than a true vaccine. In fact, you might be better off getting COVID and taking the monoclonal antibody treatment than being vaccinated.

Or perhaps not. The point is, this is a clear and obvious example of a vaccine which should be optional rather than mandatory. The public has not reached a consensus on that subject at all, and in fact is increasingly against mandatory vaccinations.

Our guess is the Fifth Circuit, and probably the U.S. Supreme Court, are going to ultimately throw out the Biden vaccine mandate on the grounds that while the precedent of Jacobson v. Massachusetts, a century-old case which established a government’s right to force vaccinations, isn’t reversed, there is a difference. In Jacobson, the state of Massachusetts was exercising its police power to vaccinate the public. But the federal government has no enumerated police power as states do, and therefore there is no source for the kind of invasive government power this mandate encompasses. These employees of companies with 100 or more workers aren’t federal government contractors per se; Trosclair’s company operates grocery stores. There is no significant nexus between their employment and spreading the virus across state lines. As such, our prediction is the ruling will be to bar the federal government from imposing a vaccine mandate on purely private sector workers.

It’s interesting that Biden didn’t mandate vaccines for people on SNAP, Medicaid or Section Eight housing. He could have defended that a lot more easily than this.



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