On Friday, the Fifth Circuit Court of Appeals confirmed a lower court’s decision to halt, temporarily at least, the immoral and authoritarian OSHA order forcing businesses with over 100 employees to force all of their employees to undergo medical procedures against their will.
Judge Kurt D. Engelhardt, who authored the decision, made some excellent points that had me pumping my fist and jumping up and down with joy while reading it. Some highlights are below:
- “On the dubious assumption that the Mandate does pass constitutional muster – which we need not decide today – it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).”
- “The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector workers 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.”
- “It is clear that a denial of the petitioners’ proposed stay would do them irreparable harm. For one, the Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s). For the individual petitioners, the loss of constitutional freedoms ‘for even minimal periods of time… unquestionably constitutes irreparable injury.'”
- “Of course, the principles at stake when it comes to the Mandate are not reducible to dollars and cents. The public interest is also served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions – even, or perhaps particularly, when those decisions frustrate government officials.”
- “Health agencies do not make housing policy, and occupational safety administrators 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.”
To say that the vaccine mandate threatens to substantially burden people’s liberty interests is an understatement. Almost nothing violates individual liberty more severely than requiring people to undergo a medical procedure as a condition of employment.
Engelhardt is 100% correct when he writes that OSHA has overstepped its bounds by enacting the mandate. OSHA’s job is to protect workers’ safety in the workplace, not to control people’s personal medical decisions or to shape behavior in order to achieve the government’s desired public health outcomes. Although forcing all workers to get either a vaccine or weekly covid testing does reduce the likelihood of a covid outbreak at a workplace, it is clear that the motivation of Biden and his administration in enacting the mandate is not specifically to make workplaces safer, but simply to force as many people as possible to get the vaccine. In other words, Biden wants everyone to get the vaccine, and his administration determined that an OSHA standard would be the most effective (and most likely to survive legal scrutiny) means of doing that. The fact that making everyone get a medical procedure does not fall within OSHA’s purview (not to mention the fact that doing so violates everyone’s rights) doesn’t seem to matter to the Biden administration.
Nothing makes this clearer than the fact that the mandate applies even to workers who work from home 100% of the time. If the mandate was intended to protect workers from catching covid at work, then it would grant people the option of working remotely (if their job duties allow) as an alternative to vaccination or testing. If a worker never physically sets foot in the workplace, their vaccine and testing decisions do not affect the safety of their co-workers. Forcing remote workers to undergo medical procedures does nothing to improve workplace safety, yet this is exactly what the Biden administration chose to do.
By enacting this vaccine mandate, the Biden administration has perverted the purpose of OSHA. A government agency that was founded to protect workers from the harmful actions of employers is now being used to require employers to do harmful things to their workers. Let’s hope and pray that these recent court decisions are the beginning of turning the tide back in the direction of liberty, individual rights, and human decency.