Judge Stranch begins with a fairy tale.1
The COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. Throughout, American employees have been trying to survive financially and hoping to find a way to return to their jobs.
Ah yes, The Pandemic did these things. Why, who can forget the futile efforts of the gym-owners, straining to press open the doors of their facilities? But the invisible, mystical energies of The Pandemic would not let those doors budge. Bar-owners, literally holding full, open beer bottles upside-down over the glass. And yet not a drop would fall. And oh, yes - the barbers wandering the countryside, high and low for days on end - yet not one finding the secret trail that leads to their jobs.
Soon (returning to our fairy tale), beleaguered employers, resigned to the permanent abrogation of the “old normal,” beseeched the council of elders at OSHA for relief.
Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace.
This, in an appeal said agency is waging against coalitions of employers seeking to reject the “guidance.” It’s hard to tell if our blind poet is sincerely delusional, or gloatingly sadistic, in falsely blaming American employers for seeking the “relief” they are seeking relief from.2 Stranch’s court had been “randomly”3 assigned review of the previously issued stay, after all, because there were so many different groups requesting a stay in so many districts at once, that a procedural rule was invoked to unnecessarily consolidate their requests for a stay - even though the stay had already been granted a month ago via the 5th Circuit.
Whatever the case, her tale ends:
Pursuant to our authority under 28 U.S.C. § 2112(a)(4), we DISSOLVE the stay issued by the Fifth Circuit for the following [incredibly bad] reasons.
Thus, the onerous masking (December 5), and designed-to-cause-absenteeism testing requirements (January 4) for “unvaccinated” employees are now back in effect.
Has Stranch’s deranged, germaphobic fantasizing placed the Federal government back into a full-fledged crisis - one of open defiance of Federal law by the states? That depends, obviously, on the states. The 5th Circuit’s stay, in November, revealed how unprepared the Biden administration was for a rebuke from the courts - Stranch’s dissolution of the stay only further disembodies the mandate from its seething avatar. Now that it is no longer the “Biden mandate,” will governors be as emboldened to stand up to it - or will they wait until the sleeping citizenry makes its voice heard?
Projecting that circumstances in the 6th Circuit would not be favorable on Friday, Governor DeSantis offered the following full-throated pledge of defiance:
“But you know, there’s a lot that could potentially be riding on this, and if they were to reverse the stay or reverse the injunction, boy.”4
There you have it: “Boy...”
It seems, from his comments on Friday, that DeSantis will prefer to wait for matters to resolve in the Supreme Court.5 Or it may be the case that he takes a fast-rising backlash against the mandate for a given, and is wisely waiting until the wind is behind his sails.
Things will probably move quickly, on that front. Despite Stranch’s farcical conclusion that OSHA had demonstrated the economic feasibility of the mandate in every business sector, company, and workplace of the entire country in advance via their “economic analysis” (because that’s how economies work), it is regardless the case that the mandate is not administratively feasible: OSHA will not be able to keep up with even a minor trickle of reported violations in the short term.
Employers supportive of the mandate in principle and facing employee defiance will therefor have to decide whether to be OSHA’s teeth, as no amount of informant phone calls to OSHA is likely to result in a prompt inspection, or review, or sanction, or who even knows what. Employers opposed to the mandate will have abundant cause to believe they can overwhelm the system in unison.
Meanwhile, the CDC appears poised to lump the double-dosed (but not yet “boosted”) in the “unvaccinated” camp at any moment, based on recent hints dropped by an obscure government official to the press.6 Such a declaration, now that the OSHA mandate is the law of the land, will make widespread compliance impossible. Yet, as this rumor was issued in advance of the 6th Circuit decision, it might not reflect the priorities of the administration going forward. To save the mandate from widespread revolt, there may be one last attempt to put the horse (purging the truly unvaccinated from society) before the carriage (declaring the double-dosed unvaccinated). This may or may not make a difference.
The only thing that it is safe to assume for now, is that Stranch’s decision has wreaked havoc across America.
(While exercising the legal pretense of their having sought relief from the “relief” to reinstate the “relief.”)
Sure…
Gancarski, A.G. “Gov. DeSantis warns of vaccine mandate ‘hiccup’ on 6th Circuit.” (2021, December 17.) Florida Politics.
Things are not promising here, after Kavanaugh and Barrett’s two recent demurrals on challenges to state mandates that refused religious exemptions in Maine and New York, leaving targeted healthcare workers in those states out to dry.
Andrew McCarthy provides an excellent critique of the decision in the Maine case at National Review (paywalled) (which I reviewed and excerpted briefly here).
Gorsuch’s dissent in the New York case, last week, is here: https://www.supremecourt.gov/opinions/21pdf/21a145_gfbi.pdf
It is a worthy and at times disturbing read, which portrays incoming New York Governor Hochul’s self-appointment as the delirious, truth-whispering ordainer of what is and is not a “sanctioned” religious belief (emphasis added):
But the new Governor did. In response to a reporter’s question 12 days before the revised mandate was set to take effect on September 27, Governor Hochul acknowledged that “we left off [the religious exemption] in our regulations intentionally.” […] Asked why, the Governor answered that there is no “sanctioned religious exemption from any organized religion” and that organized religions are “encouraging the opposite.” Apparently contemplating Catholics who object to receiving a vaccine, Governor Hochul added that “everybody from the Pope on down is encouraging people to get vaccinated.”
Speaking to a different audience, the Governor elaborated: “How can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media.” […]
The day before the mandate went into effect, Governor Hochul again expressed her view that religious objections to COVID–19 vaccines are theologically flawed: “All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.” […]
The Free Exercise Clause protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in “the performance of (or abstention from) physical acts.”
Note that the question of religious exemption to a state mandate (a 14th Amendment intervention into state exercise of police power), and the constitutionality of the Federal OSHA emergency rule are two separate matters, with the latter being even easier to dismiss (in that OSHA, itself, has patently exceeded the powers of the Federal government since inception). The point of reviewing the former is that Kavanaugh and Barrett’s siding with the majority in denying injunctive relief twice, once with a flimsy reference to court procedure and the second time without comment, signals that something about Covid vaccine mandates causes these two very freshly-appointed justices to vote in unexpected ways…
See Taylor, Chloe. “Fauci says a redefinition of fully vaccinated is ‘on the table’.” (2021, December 17.) CNBC.
The lone dissenting opinion is excellent. I love it when people preface "you're an idiot" with "with respect". The main question now is whether scotus will take the case, and if they do, how quickly. The damage grows daily until this is resolved, and probably for a while thereafter. Eventually the response will turn violent. Maybe sanity will return before it gets too bad.
I've read elsewhere (SWC) that since there was a negative vote on the decision, the Sixth Circuit will most likely take on the case en banc. I certainly hope so. Sidebar: only a Corona Karen could have penned such an idiotic decision.