At Biden’s direction, the OSHA issued a rule earlier this month requiring U.S. employers with 100 or more workers to ensure their workers are fully vaccinated against COVID-19 or undergoing weekly tests for the virus by Jan 4. Businesses that don’t comply face thousands of dollars in fines.

The rule prompted a slate of legal challenges from at least 27 states as well as business and religious groups who argue the mandate is unconstitutional. Biden and other federal officials argue the mandate is necessary to end the COVID-19 pandemic and fully reopen the economy.

A few days later, the 5th U.S. Circuit Court of Appeals granted an emergency stay of the requirement that those workers be vaccinated by Jan. 4 or face mask requirements and weekly tests. The Federal Government was ordered to respond to the motion for a permanent injunction by 5:00 PM on Monday, November 8 and the petitioners in the case were ordered to file any reply by 5:00 PM on Tuesday, November 9.”

After reviewing the responses, the appeals court reaffirmed its decision Friday to enact a stay on President Biden’s workplace vaccination mandate. The Fifth Circuit Court of Appeals ordered OSHA to “take no steps to implement or enforce the Mandate until further court order.” The decision was the latest development in what is expected to be a lengthy legal battle over the mandate’s legality.

The court commenced it opinion by noting that “in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived. The opinion first considered whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. It concluded that for “a multitude of reasons, they are.”

One example is “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).”

“OSHA cannot possibly show that every workplace covered by the Mandate currently has COVID-positive employees, or that every industry covered by the Mandate has had or will have “outbreaks.“

“The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees 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.”

The court went on to say “It is 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.”

“It lastly bears noting that the Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits…. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power.”

“Second, concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.”