Well, in a 22-page decision, the Fifth Circuit Court of Appeals on Friday, November 12, 2021 stopped the Biden Administration's Experimental Drug Therapy ("EDT") shot mandated via presidential Executive Order (the "Biden Mandate") and implemented via an OSHA "emergency temporary standard" ("OSHA ETS").
There was never any law, no duly-enacted rule, no deliberation, no due process. President Biden scribbled the Biden Mandate on a piece of paper and the Administrative State, through OSHA, dutifully complied by unilaterally promulgating the labyrinthine OSHA ETS, threating the life, safety, and health of 2/3rds of America's private workers–over 80 million people--without seeking anyone's input or consent. Thankfully, the Fifth Circuit panel has rejected the Biden Mandate and also stated that a future permanent injunction is likely. As we observed earlier, the EO was and is DOA. The Fifth Circuit has stated the obvious: OSHA does not have jurisdiction over the seasonal flu.
There is also good reason to believe that this decision will be affirmed by the SCOTUS. The Fifth Circuit's Order appears to signal that a very influential part of the Team Red Establishment--Team Federalist Society--is now anti-Mandate. The evidence? First, three Federalist Society judges, two Trump appointees and one Reagan appointee, unanimously issued the decision. Second, selection of Court of Appeals panels is not a random process. The Chief Judge of the Fifth Circuit, who likely had some say in the constitution of this panel, is a Federalist Society member, and also, interestingly, is a Bush appointee. It thus appears that Team Federalist Society, a friend first and foremost to political power and a friend to liberty when it is politically useful, may have put its political finger to the wind and determined that attempting to coerce over 80 million unwilling victims into serving as lab rats in a global medical experiment is not something that would be politically prudent. Team Federalist Society has decided not to die on the Experimental Drug Therapy shot hill.
Smart move.
Third and finally, the predictive "tell" is that the Fifth Circuit's decision uses fairly strong and persuasive populist rhetoric and stakes out a States' rights position. There is of course no mention of the 9th or 10th Amendments, as these are anathema to Team Federalist Society. The States' rights part of the Order is instead framed as State "police powers," a very Team Federalist Society term. Nevertheless, any deference to States' rights is unusual for Team Federalist Society and it feels very intentional. If it is correct that Team Federalist Society is now anti-Mandate, whether for political reasons or not, this is good news for Team Liberty. If Team Federalist Society has pivoted, it seems likely that Supreme Court Justices Kavanaugh and Barrett, Federalist Society darlings, have also received the Team Federalist Society memo from HQ in Wichita, Kansas. Kavanaugh and Barrett are the iffiest judges from a liberty perspective, but if this is a deliberate (and smart) political play called by Team Federalist Society headquarters, it seems likely that a SCOTUS review of the Fifth Circuit decsion would be 5-4 in affirming the Fifth Circuit, with Kavanaugh and Barrett providing the swing votes. Hurrah!! Mitch McConnell and Team Federalist Society have saved the day! The system is stable! Everyone please go back to the Team Red v. Team Blue narrative because this shows that Team Red really cares about you. You get the idea.
Although the Fifth Circuit decision is good news for Team Liberty, nothing is certain. Team Liberty and smart employers should delight in this victory and at the same time proceed with requisite caution. Because it seems that everyone is Washington D.C. is compromised in some way, it is certainly plausible that a Justice Kavanaugh could flip and issue a ridiculously contorted decision just like Justice Roberts did in the Obamacare health care "mandate" decision.
Hope for the best, plan for the worst.
The decision itself is worth reading because it very conciously taps into the populist political zeitgeist and what trial lawyers call The Reptile Mind. It seems that its author, Judge Englehardt (Angel-heart), may be reading our mail.
THE REPTILE MIND
As anyone who has successfully tried a case to a jury knows, a jury (or any collection of people faced with a momentous decision) does not pay much attention to data or statistics. Juries pay close attention to: (1) who in this drama presents the biggest safety risk to me and my family?; and (2) who is lying to me? This is the Reptile Mind.
VAERS data, even if accurate or is only 1/10th of reality, will always be anecdotal and distant to the Reptile Mind. Even personal testimonies or videos of strangers violently shaking shortly after receving the EDT shot have little effect on the Reptile Mind. Not close enough to home to make the Reptile Mind feel unsafe. The Reptile Mind does not think. The Reptile Mind does not engage transitory emotions. The Reptile Mind lives in the present. The Reptile Mind "feels," and knows right and wrong intuitively and viscerally. The Reptile Mind loves or hates and does not court neutrality. The Reptile Mind is easily scared and led (and often misled) by images. That is why the Reptile Mind was so easily misled by exponential death charts and propagandistic images at the beginning of the pandemic narrative. At the same time the Reptile Mind tirelessly seeks and finds the truth and gets very angry and vengeful when it learns that it has been conned. The Reptile Mind hates liars, hates bullies, hates hypocrisy, hates concealment, hates uncertainty, and hates all safety risks to its family and tribe. The Reptile Mind loves truth, loves clarity, loves safety, loves stability, and loves Scripture, particularly the hard ethical casuistry of the Book of Proverbs and the take-no-prisoners themes in the Old Testament.
To save the Reptile Mind the work of reading the Fifth Circuit's order, I have reproduced the salient parts below:
HYPOCRISY
The Fifth Cicuit's Order calls out the hypocrisy of both the Biden Administration and OSHA. Did you know that OSHA was asked to do the same thing--issue an ETS--in 2020, and it refused? Do you recall that Biden himself was against mandatory vaccinations in 202o before he was for them in 2021? The Fifth Circuit does:
The Occupational Safety and Health Administration (OSHA) “reasonably determined” in June 2020 that an emergency temporary standard (ETS) was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19.” In re AFL-CIO, 2020 WL 3125324, at *1 (D.C. Cir. June 11, 2020). This was not the first time OSHA had done this; it has refused several times to issue ETSs despite legal action urging it do so. See, e.g., In re Int’l Chem. Workers Union, 830 F.2d 369 (D.C. Cir. 1987) (per curiam). In fact, in its fifty-year history, OSHA has issued just ten ETSs. Six were challenged in court; only one survived.2 The reason for the rarity of this form of emergency action is simple: courts and the Agency have agreed for generations that “[e]xtraordinary power is delivered to [OSHA] under the emergency provisions of the Occupational Safety and Health Act,” so “[t]hat power should be delicately exercised, and only in those emergency situations which require it.” Fla. Peach Growers Ass’n v. U.S. Dep’t of Lab., 489 F.2d 120, 129– 30 (5th Cir. 1974).
OSHA’s reversal here strains credulity, as does its pretextual basis. Such shortcomings are all hallmarks of unlawful agency actions.
Moreover, earlier in the pandemic, the Agency recognized the practical impossibility of tailoring an effective ETS in response to COVID- 19. See OSHA D.C. Circuit Brief at 16, 17, 21, 26 (“Based on substantial evidence, OSHA determined that an ETS is not necessary both because there are existing OSHA and non-OSHA standards that address COVID-19 and because an ETS would actually be counterproductive. . .
Footnote 2: It bears noting at the outset that most of the few ETSs issued by OSHA were immediately stayed pending merits review. See Asbestos Info. Ass’n/N. Am. v. OSHA, 727 F.2d 415, 418 (5th Cir. 1984); Indus. Union Dep’t, AFL-CIO v. Bingham, 570 F.2d 965, 968 (D.C. Cir. 1977); Taylor Diving Salvage Co. v. U.S. Dep’t of Lab., 537 F.2d 819, 820–21 (5th
The Administration’s prior statements in this regard further belie the notion that COVID-19 poses the kind of emergency that allows OSHA to take the extreme measure of an ETS. In reviewing agency pronouncements, courts need not turn a blind eye to the statements of those issuing such pronouncements. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In fact, courts have an affirmative duty not to do so. 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. See, e.g., Occupational Exposure to Bloodborne Pathogens, 54 Fed. Reg. 23,042, 23,045 (May 30, 1989) (“Health in general is an intensely personal matter. . . . OSHA prefers to encourage rather than try to force by governmental coercion, employee cooperation in [a] vaccination program.”); Letter from Loren Sweatt, Principal Deputy Assistant Sec’y, OSHA, to Richard L. Trumka, President, AFL-CIO at 3 (May 29, 2020) [hereinafter Sweatt Letter].
THE "WORK-AROUND" DECEPTION
The Reptile Mind will not be happy to learn, in footnote 13 of the Court's Order, that the OSHA ETS, which actually threatened the lives, safety, and health of over 80 million innocent people, was little more than an authoritarian gimmick that had nothing to do with worker health and safety. President Biden's Chief of Staff Ron Klain made known that he views 80 million people as little more than lab rats and stated that the OSHA ETS was the "ultimate work-around" to coerce EDT shot compliance:
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,”13 for imposing a national vaccine mandate.
Note 13: On September 9, 2021, White House Chief of Staff Ron Klain retweeted MSNBC anchor Stephanie Ruhle’s tweet that stated, “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.” See, e.g., Pet’rs Burnett Specialists, Choice Staffing, LLC, and Staff Force Inc.’s Reply Brief at 4 (emphasis added).
The President and the Administrative State thus concocted a scheme, the "ultimate work-around," which OSHA had rejected out of hand only a year earlier, to coerce over 80 million innocent wage-earning people into the precarious choice between losing their livelihoods or submitting to a dangerous experimental drug treatment for which there was no factual need and for which the beneficiaries--Pfizer, Moderna, Johnson & Johnson et al.--enjoyed complete immunity from liability.
Are you awake yet Mr. and Mrs. Reptile?
COERCION
The Fifth Circuit asserts that the real reason for the Biden Mandate was that an angry, mean-spirited, and frustrated President Biden felt the need to resort to "any means necessary" to coerce unruly serfs into compliance to "ramp up vaccine uptake" after his attempts to obtain voluntary compliance had failed:
The President announced his intention to impose a national vaccine mandate on September 9, 2021. See, e.g., Kevin Liptak & Kaitlan Collins, Biden Announces New Vaccine Mandates that Could Cover 100 Million Americans, CNN (Sept. 9, 2021), https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html (“‘We’ve been patient, but our patience is wearing thin, and your refusal has cost all of us,’ Biden said, his tone hardening toward Americans who still refuse to receive a vaccine despite ample evidence of their safety and full approval of one . . . .”). OSHA issued the Mandate nearly two months later, on November 5, 2021, and the Mandate itself prominently features yet another two-month delay. One could query how an “emergency” could prompt such a “deliberate” response. In similar cases, we’ve held that OSHA’s failure to act promptly “does not conclusively establish that a situation is not an emergency,” but “may be evidence that a situation is not a true emergency.” Asbestos Info., 727 F.2d at 423 (emphasis added).
But the Mandate at issue here is anything but a “delicate[] exercise[]” of this “extraordinary power.” Cf. Pub. Citizen, 702 F.2d at 1155. Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size- fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.
At the same time, the Mandate is also underinclusive. The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer. The reason why? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate. See 86 Fed. Reg. 61,402, 61,403 (“OSHA seeks information about the ability of employers with fewer than 100 employees to implement COVID-19 vaccination and/or testing programs.”). That may be true. But this kind of thinking belies the premise that any of this is truly an emergency. Indeed, underinclusiveness of this sort is often regarded as a telltale sign that the government’s interest in enacting a liberty-restraining pronouncement is not in fact “compelling.” Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 542–46 (1993) (city’s ban on religious animal sacrifice but corresponding allowance of other activities similarly endangering public health belied its purportedly “compelling” interest in safe animal disposal practices). The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.19
The Mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing. 86 Fed. Reg. 61,402, 61,407, 61,437, 61,552. 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.
It compels covered employers to (1) make employees get vaccinated or get weekly tests at their expense and wear masks; (2) “remove” non-complying employees; (3) pay per-violation fines; and (4) keep records of employee vaccination or testing status. 86 Fed. Reg. at 61,402–03, 61,551–54; 29 U.S.C. § 666. OHSA invokes no statute expressly authorizing the rule. Instead, OSHA issued it under an emergency provision addressing workplace “substances,” “agents,” or “hazards” that it has used only ten times in the last 50 years and never to mandate vaccines. 86 Fed. Reg. at 61,403; see 29 U.S.C. § 655(c)(1).
CALL TO CLARITY AND REALITY
The Fifth Circuit's Order makes some very interesting and telling statements that seem to indicate that certain elements of the Establishment no longer find the pandemic narrative useful. The court astonishingly uses the terms "naturally immune," "reality," and "common sense," and appears to acknowledge the self-evident truth that natural immunity is superior to artificial immunity:
Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains—the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.
The court even, albeit obliquely, notes that OSHA failed to "prove" the existence of the COVID-19 phantom. OSHA's submissions to the Court restated hollow rhetoric and did not present any actual "evidence of the presence of COVID-19 in the workplace":
A natural first step in enacting a lawful ETS is to show that employees covered by the ETS are in fact exposed to the dangerous substances, agents, or hazards at issue—here, COVID-19. See, e.g., Int’l Chem. Workers, 830 F.2d at 371 (noting OSHA’s stated view “that a finding of ‘grave danger’ to support an ETS be based upon exposure in actual levels found in the workplace”). As it pertains to the vast majority of private employees covered by the Mandate, however, OSHA fails to meet this threshold burden. In defending the Mandate before this court, the Government credits OSHA with “describ[ing] myriad studies showing workplace [COVID-19] ‘clusters’ and ‘outbreaks’ and other significant ‘evidence of workplace transmission’ and ‘exposure.’” See Resp’ts’ Opp’n to Emergency Stay Mot. at 8. But this misses the mark, as OSHA is required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces.
PLAYING POLITICS
I am admittedly perhaps overly cynical of anything done by any federal judge. But I have good reason. Whatever the truth is, I believe the statements below show that a very influential subgroup of Team Red--Team Federalist Society--is sensing that the political winds have shifted and so it is now pivoting away from the pandemic narrative. This is significant and is good news for Team Liberty. If any part of the Establisment is starting to fear the Reptile Mind, that is a good thing. It should.
Debates over the Biden Administration’s forthcoming vaccine mandate roiled the country throughout much of the Fall. For obvious reasons, the Mandate affects every person in America in one way or another.
The Mandate derives its authority from an old statute employed in a novel manner,20 imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA’s core competencies, and purports to definitively resolve one of today’s most hotly debated political issues. Cf. MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 (1994) (declining to hold that the FCC could eliminate telecommunications rate- filing requirements).
Courts “expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’”
The Court also makes clear that any attempt to defy the Order will be an act of contempt:
In addition, IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order.
CONCLUSION
The Fifth Circuit Court of Appeals has informed the world that the Biden Mandate and the OSHA ETS are not "attempts to enhance workplace safety," but instead represent "unlawful agency actions" and "any means necessary" acts of coercion designed solely to "ramp up vaccine uptake."
Wise employers who want to make intelligent risk decisions should see what the Fifth Circuit clearly sees: the United States federal government, through the Biden Admistration and OSHA, attempted to use you to psychologically abuse and coerce your employees into serving as lab rats in a worldwide experiment. Further, because of government sovereign immunity, because of pharmaceutical company statutory immunity, and because the federal government's actions were clearly beyond the scope of their authority, the federal government exposed you to liability for injuring or killing your employees. They issued a phony edict. If you would have acted on it and someone got hurt, you would be holding the bag because you would be the only potentially responsible party.
The message to intelligent employers who truly care about the well-being of their employees is: HOLD. Plan for the worst, hope for the best. At this point, any attempts by the Biden Administration to enforce the Biden Mandate or the OSHA ETS will be a contempt of court so there is no need for immediate worry. As we assessed on November 7, the EO was DOA.
Nevertheless, planning for the worst means planning that this may someday get overturned at the SCOTUS. That will mean at least mentally preparing to someday implement a gameplan that involves: (1) encouraging reality-based exemption requests and granting all of them; (2) connecting employees with doctors who will provide mask exemption requests and granting all of them; and (3) planning for rapid, accurate, and frictionless testing (no nasal swab) of your employees and picking up the tab; and (4) keeping good records of all of the above. I don't believe this will be necessary, but the threat still exists so an intelligent "work around" should be considered in advance.
Final note of bad news for the Always Trumpers in the audience. This all started on September 19, 2019--yes, 2019--when President Donald J. Trump signed Executive Order No. 13887. Read it and weap. Through Executive Order No. 13887, ex-President Donald Trump stipulated to the idea that the seasonal flu could be a deadly and dangerous "pandemic" that warranted unprecedented government action. Without Executive Order No. 13887, there would be no pandemic narrative and there would be no vaccine mandate. Mr. Trump also accepted a $1 million inauguration donation from Pfizer and has exhibited evidence of being compromised from day 1.
Donald Trump is not your savior and he never was.
P.S.--PUBLIC SERVICE ANNOUNCEMENT
Final Public Service Announcement to all local police departments, fire departments, public works departments, public transportation departments, sanitation departments, etc. Much like its lack of jurisdiction over the seasonal flu, OSHA also does not have jurisdiction over any state or local government employer. It is only a matter of time before a sane court declares that the CDC's jurisdiction is similarly restricted. If you an employee of one of these local government entities and you are being compelled to submit to being a lab rat in global experiment, keep asking "Who says?"
https://www.williambernardbutler.com/mandate-shmandate/
