Biden’s Covid Vaccine Mandate Restored for Big Business
But Trump-appointed Judge Joan L. Larsen voiced her dissent, arguing – as the Fifth Circuit panel before her had done – that the agency had overstepped its legal authority.
The coronavirus pandemic: what you need to know
“The mandate is directly aimed at protecting the unvaccinated from their own choices,” Justice Larsen wrote. “Vaccines are available free of charge and unvaccinated people can choose to protect themselves at any time. And because the secretary likely doesn’t have the authority of Congress to force them to protect themselves, the remaining stay factors can’t tip the scales. “
All of the Fifth Circuit panel judges who blocked the rule were appointed Tory Republicans.
Opponents of the decision could appeal directly to the Supreme Court, which is controlled by a conservative bloc of six Republican nominees. (The Supreme Court refused this month to block New York’s requirement that healthcare workers be vaccinated against the coronavirus even when they cite religious objections.)
The challengers could also appeal to the United States Court of Appeals for the Sixth Circuit. Of its 16 sitting judges, five were nominated by Democrats and 11 by Republicans. (However, one of the Republican nominees, Judge Helene N. White, was originally a candidate for a Democratic President, Bill Clinton, before being re-appointed by a Republican, George W. Bush, as part of a political agreement.)
Conditions on the ground are changing rapidly, with an upsurge in new cases, apparently due to the more infectious Omicron variant. Last month, the Justice Department warned that preventing the warrant from coming into force “would likely cost dozens, if not hundreds of lives a day, in addition to a large number of hospitalizations, other effects serious health risks and enormous costs ”.
The OSHA rule, along with a separate requirement for federal contractors, has helped a number of large companies advertise some form of vaccination warrant, including Procter & Gamble, IBM, and American Airlines. Others, like Tyson Foods and Google, have introduced mandates on their own, in the face of the growing risk of the Delta variant.