Fifth Circuit stays the vax mandate
States have extensive public health powers. It's less clear that the feds do, and even less clear that OSHA has the power to enforce a vaccination mandate, let alone the particular mandate the White House came up with. This is not a final ruling, however, and no matter how clearly it expresses the views of a 3-judge panel, we don't know yet how it will fare en banc or in the Supreme Court.
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16 comments:
I think that's about right from what I can understand about precedent. It's also just about what I approve of personally: New Hampshire has broad public health powers, because it's easier for me to get rid of them if I think they are screwing up. They are on the scene and can more nimbly put things on and take them off.
I might feel differently in a different state, I admit.
I gather that the general theory on the left is that the government exists to do good things, and that it must therefore have whatever powers necessary to do good (as they understand “good”).
Yup, because the preamble says "general welfare," QED. And why do you hate puppies?
Two of my favorite parts of the ruling, one from the "likely to succeed on merit" section, and one near the end:
Citation omitted: It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.
…
Because it is generally "arbitrary or capricious" to "depart from a prior policy sub silentio," agencies must typically provide a "detailed explanation" for contradicting a prior policy, particularly when the "prior policy has engendered serious reliance interests." OSHA's reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.
And
For the individual petitioners, the loss of constitutional freedoms "for even minimal periods of time…unquestionably constitutes irreparable injury." Elrod v Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").
Eric Hines
Never have I been more relieved to work for myself, and owe no money , than during this stack-up of intimidation and coercion on all fronts.
A state of emergency is just that- designed to grant executive power when time is too short to allow legislative action.
After nearly two years, they can take their emergencies,orders, mandates, etc, wrap them in a mask, and shove them sideways .
@ E Hines - I'm not seeing the First A angle you are referring to here. Is getting/not getting a vaccination a speech issue by some definition I missed? I am intrigued.
Is getting/not getting a vaccination a speech issue by some definition I missed?
Is this a serious question? The circuit court generalized Elrod to loss of constitutional freedoms generally.
Eric Hines
But you are assuming that refusing a public health mandate is a guaranteed constitutional freedom. That seems like assuming what you are trying to prove.
I get it that a lot of people are saying that these days, and insisting that it is just obvious. It's the "just obvious" things that are always most suspect in my book. That's where the poorest reasoning gets smuggled in.
You might try reading the court's ruling. I'm not assuming anything, nor am I trying to prove anything.
https://storage.courtlistener.com/pdf/2021/11/12/bst_holdings_l.l.c._v._osha.pdf
Eric Hines
In fairness, Mr. Hines is just quoting the ruling. The judge may be making an assumption, or it may be a judgment about what he (she?) thinks the final ruling will find. It's necessarily speculative at this point, but if he (she?) thinks that a constitutional right will likely be found to be being violated, it makes sense to protect it.
That said, not all rights are equally protected. First Amendment rights get much more deference from courts than do Second Amendment ones, or even Fourth Amendment ones. The choice to analogize to the 1A specifically is more consequential than perhaps it should be.
How many divisions does the 5th have to enforce this order?
Even xiden has more divisions guarding dc from patriots than 0.
Satan has given an order to humanity.
Obey.
We will see how many humans are as free as they think or if they were born as zombi3s. They will certainly die as one at this rate but dont assume i will allow them to die an easy death.
Mrna gene overrides for gmo patents are not waxinations.
The human comprehension over medical issues has always been shot but they have even forgotten or changed the definition of what a waxxine is.
Now that cdc has changed said def, vitamin d and iver are also waxinations. Case closed.
Since this is the opinion issued with making the stay permanent (at least until an adverse ruling if I understand how it works) I suspect that it's fairly normal for a court to discuss at length their justification for thinking that the petition has a significant chance to succeed, and less time to the negative arguments.
@ Eric Hines - yes, it was the judge who related it to probable constitutional rights, but that's not final, and you seemed to assent to it as obvious. I'm not sure it is. Did I misread you, there?
I can't speak for Mr. Hines, but there have been cases around the right to refuse medical care. The court has held that there is a "significant liberty interest" in being able to refuse e.g. injections of anti-psychotic drugs that prison staff may want to impose upon a prisoner. I'm not sure if that rises to the level of a constitutional right to refuse medical treatment, but it's definitely a real concern.
With the volunteer fire department, we often have patients refuse transport to the hospital when we rescue them from whatever caused them to call us. This is sensible as they would be liable for large debts if they accepted the "service," but the point is that there's no leeway at all to force them to accept care that is obviously in their best interest. They may well die a few minutes later, or a few days later, but no one has the authority to force them to go to the hospital.
https://biotech.law.lsu.edu/cases/consent/cruzan_sc.htm
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