The Sixth Circuit Court of Appeals declined Wednesday to hear “en banc” the case against President Joe Biden’s rule forcing large private employers to vaccinate or COVID-19 test their employees.
The Daily Wire, first to challenge the Biden mandate in the Sixth Circuit, is the lead plaintiff in the case against the federal rule after the Sixth Circuit was picked by lottery to consolidate and oversee the rule’s numerous legal challenges. The Daily Wire and others petitioned the court to hear the case “en banc,” or in front of all 16 judges on the court, for a vote on the case citing the extraordinary nature of the Biden administration’s mandate.
The full court voted 8-8 on the petition, denying the request which needed a clear 9-vote majority to proceed. Judge Karen Nelson Moore wrote the majority opinion, joined by four other judges on the court, arguing that an en banc hearing on the case is unnecessary and impractical. In a dissent signed by half of the court’s judges, Chief Judge Jeffrey Sutton expressed deep skepticism in the Biden order’s legality, however. Moore wrote in part:
In a case as important, accelerated, and briefing-filled as this one, however, gathering all hands on deck would have strained the resources of the sixteen active judges, requiring each of us to review the voluminous record and the relevant underlying legal doctrines. What’s more, it would have done so for no discernable purpose: the case already sits before three thoughtful, independent judges on the panel who have spent the past weeks steeped in this matter. We properly leave the matter in their hands.
Three members of the court voted against granting the en banc hearing but did not join Moore’s majority opinion. The judges’ reticence to opine on the case suggests that some or all of those judges – Jane Stranch, Julia Gibbons, and Richard Griffin – may be on the three-judge panel currently overseeing the case, according to legal experts.
Sutton wrote a lengthy dissent joined by the seven remaining judges on the Sixth Circuit’s decision. Sutton’s 26-page dissent not only argues in favor of an en banc hearing, but critiques the federal government’s case, as well, signaling that at least half of the court is deeply skeptical of the Biden mandate’s legality.
Sutton argues that the Biden mandate – which would force roughly 80 million Americans to be vaccinated, tested weekly for COVID-19, or forced out of their jobs – does not meet the clear-statement rule that Congress must explicitly grant an agency sweeping authority before drastic action can be taken.
“Congress did not ‘clearly’ grant the Secretary of Labor authority to impose this vaccinate-or-test mandate,” Sutton wrote. He continued:
It is one thing to tell a worker to don a mask at the start of a hazard-filled shift and doff it at the end. It is quite another to tell a worker to vaccinate on the basis of a risk that exists whether he is on the clock or off and that amounts to a medical procedure that cannot be removed at the end of the shift. Confirming the point, the Secretary of Labor has never imposed a vaccine mandate or for that matter a vaccinate-or-test mandate on American workers. The [Occupational Safety and Health Act] does not clearly give the Secretary power to regulate all health risks and all new health hazards, largely through off-site medical procedures, so long as the individual goes to work and may face the hazard in the course of the workday.
Sutton’s opinion also argues that a stay on the mandate, first issued by the Fifth Circuit before the case consolidated in the Sixth, should remain in place while the legal challenge plays out.
Judge John Bush, who joined in the chief judge’s dissent, also wrote his own dissent taking Sutton’s argument a step farther, claiming that Congress could never have granted the Biden administration the authority to enforce its COVID-19 order on private employers. Bush began his dissent:
This is a case about the Occupational Safety and Health Administration, but it is really a case about power. Specifically, it concerns the attempted exercise of a purported power — to impose a de facto national vaccine mandate1 upon some eighty-million Americans — that OSHA was never given and that Congress likely could never have given to it. Chief Judge Sutton’s dissent ably explains the former defect, and so I join it in full. I write separately to address the latter.
Whether it uses a clear statement or not, Congress likely has no authority under the Commerce Clause to impose, much less to delegate the imposition of, a de facto national vaccine mandate upon the American public. Such claimed authority runs contrary to the text and structure of the Constitution and historical practice. The regulation of health and safety through compulsory vaccination is a traditional prerogative of the states — not the domain of Congress and certainly not fodder for the diktat of a federal administrative agency. Because we should have granted initial hearing en banc to vindicate the correct understanding of the Constitution and to cabin OSHA to its legitimate role, I respectfully dissent.
The Daily Wire is fighting Joe Biden’s vaccine mandate in federal court. Join us in this fight by signing our petition to OSHA, telling them that you will not comply with this mandate.