5 Trump judges block federal government vaccine/testing mandates from taking effect


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Trump judges block vaccine mandates

Three southern U.S. courts have blocked parts of the federal government’s Covid-19 vaccine/testing mandate from taking effect over the past month.

Fifth Circuit

In November, the 5th Circuit issued a temporary stay blocking the implementation of the Occupational Safety and Health Administration’s (OSHA) “Emergency Temporary Standard on Vaccines and Testing” nationwide. The rule would require employees of businesses with 100 or more employees to be vaccinated by January 6, 2022, or undergo weekly testing.

The three-judge panel—made up of Reagan appointee Edith Jones, Trump appointee Kurt Engelhardt, and Trump appointee Kyle Duncan—used the vaccine/testing mandate as an opportunity to undermine federal power and write a partisan screed against the Democratic party. This shouldn’t come as a surprise, either; all three judges have a history of bizarre, biased, and bigoted statements.

  • Engelhardt dismissed numerous sexual harassment claims despite compelling evidence. He tried to have Obamacare declared unconstitutional, suggesting “the entire law was enacted as part of a fraud on the American people”.
  • Duncan argued before the Supreme Court against the constitutionality of same-sex marriage in 2015. He intentionally misgendered a transgender litigant in a 2020 opinion. Also in 2020, Duncan ruled that Texas could ban abortions during the pandemic in order to uphold “public safety.”
  • Jones was once known as the most conservative justice on the hyper-conservative 5th Circuit. Now, with six Trump judges on the court, she may be outmatched. Her past opinions include a 2017 dissent arguing that Texas’ voting laws weren’t racist, a 2018 ruling that Texas can ban sanctuary cities, and a 2014 statement that 300 miles is not a long distance to travel to obtain an abortion. Jones was also the subject of an ethics complaint in 2013 for allegedly saying that “racial groups like African-Americans and Hispanics are predisposed to crime” and are “prone to commit acts of violence” that are more “heinous” than members of other ethnic groups.

The panel’s opinion (pdf) staying OSHA’s vaccine/testing mandate begins with criticism of the idea that the pandemic poses a danger to American workers:

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’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.

The court then asserts that the real reason OSHA issued the vaccine rule was to boost Biden’s political standing:

After the President voiced his displeasure with the country’s vaccination rate in September, the Administration pored over the U.S. Code in search of authority, or a “work-around,” for imposing a national vaccine mandate…the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.

What we should really be worried about, according to the judges’ ruling, is money:

…a stay is firmly in the public interest. From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months.

Finally, the 5th Circuit says, the federal government doesn’t have the power to issue public health orders. When followed to its logical conclusion, this principle—called the nondelegation doctrine—would undermine and limit all federal regulatory agencies.

This theory, which has no basis in the Constitution, prevents Congress from delegating too much power to executive agencies. The Supreme Court has used it twice, both times in 1935 to hobble New Deal legislation. If revived, this doctrine would bring much of government to a screeching halt, hobbling thousands of critical federal regulations on everything from the environment, health care, employment, education, immigration, and more.

The Fifth Circuit’s ruling will be reviewed by the Sixth Circuit, which was chosen by lottery to decide the fate of 34 appellate-level challenges to the Biden administration’s mandate (pdf).

Louisiana and Missouri

Two Trump appointed District Court judges issued injunctions against the Centers for Medicare & Medicaid Services’ (CMS) healthcare worker vaccine mandate.

On Nov. 29, Missouri U.S. District Court Judge Matthew Schelp blocked the order from taking effect for nursing homes in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

Schlep explains in his ruling that he does not believe CMS has the authority to issue a vaccine mandate (pdf):

The mandate’s economic cost is overwhelming. CMS estimates that compliance with the Mandate—just in the first year—is around 1.38 billion dollars. Those costs, though, do not take into account the economic significance this mandate has from the effects on facilities closing or limiting services and a significant exodus of employees that choose not to receive a vaccination. Likewise, the political significance of a mandatory coronavirus vaccine is hard to understate, especially when forced by the heavy hand of the federal government. Indeed, it would be difficult to identify many other issues that currently have more political significance at this time. Had Congress wished to assign this question fraught with deep economic and political significance to CMS, “it surely would have done so expressly.”

A day later, Louisiana District Court Judge Terry Doughty (also a Trump appointee) issued a nationwide injunction blocking the CMS vaccine mandate from taking effect (pdf).

If the Executive branch is allowed to usurp the power of the Legislative branch to make laws, two of the three powers conferred by the Constitution would be in the same hands. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency…

This matter will ultimately be decided by a higher court than this one. However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.


Most recently, a Trump appointee in Georgia issued a nationwide injunction blocking enforcement of Biden’s vaccine mandate for U.S. Government contractors.

Southern District of Georgia Judge R. Stan Baker ruled on Tuesday that Biden’s executive order likely exceeds his authority (pdf):

While the Procurement Act explicitly and unquestionably bestows some authority upon the President, the Court is unconvinced, at this stage of the litigation, that it authorized him to direct the type of actions by agencies that are contained in EO [Executive Order] 14042… The Court has already described in detail the extreme economic burden the Plaintiffs have suffered and will continue to suffer in endeavoring to comply with EO 14042…

The Court finds that Plaintiffs have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.

Senate votes down vaccine mandate

Senate Republicans joined the red states’ fight against the Biden administration’s vaccine/testing mandates by trying to shutdown the government.

Sens. Roger Marshall of Kansas and Mike Lee of Utah demanded a vote on an amendment last week to defund the requirements on U.S. businesses, government contractors, and healthcare workers. It failed 48-50.

“We’re opposed to the mandate,” said Sen. Ron Johnson (R-Wis.). “We don’t want the federal government to be able to fund them in any way shape or form.”

“I think we should use the leverage we have to fight against what are illegal, unconstitutional and abusive mandates from a president and an administration that knows they are violating the law,” Sen. Ted Cruz of Texas told reporters.

Though they lost the government shutdown ultimatum, Senate Republicans rebooted their efforts this week with the help of two Democrats.

Using a special process to bring a resolution to the Senate floor without the approval of the majority leader, Republicans led a vote on a bill by Sen. Mike Braun of Indiana on Wednesday. S.J.Res.29 would overturn OSHA’s mandate that private-sector employees either get vaccinated against Covid-19 or submit to regular testing.

It passed 52-48, with Sens. Joe Manchin of West Virginia and Jon Tester of Montana joining their 50 GOP colleagues. Ultimately, the measure is more symbolic than practical: the House is unlikely to take it up and Biden is sure to veto it.