Appeals court blocks Covid-19 vaccine mandate for large businesses | Hacker News Reader

Appeals court blocks Covid-19 vaccine mandate for large businesses

latimes.com

21 pointsrsj_hn9 comments

Mandate is hereby stayed pending further action by this court [pdf] - https://news.ycombinator.com/item?id=29132886 - Nov 2021 (120 comments)

So depressing. The argument was that there are "grave constitutional concerns" with allowing implementation of the mandate (which is odd to begin with, considering that medical practice regulation like this has been done by the federal government for centuries).

Note that this is exactly the same panel of the same circuit court that found two months ago that the Texas abortion law (which clearly intersected with an existing right found by SCOTUS, that was its whole point!) was perfectly fine and not worth enjoining until a specific case came up.

This is just lawless. It's hard to imagine a more politically motivated judiciary than the fifth circuit right now. SCOTUS went along last time, I can only pray they come to their sense this round.

> medical practice regulation like this has been done by the federal

Yes, by law, but not executive order. OSHA was established to limit workplace injury. There is a long history of trying to use OSHA to regulate workplaces in ways that exceed the authorizing legislation, and each of them have been ruled unconstitutional.

> medical practice regulation like this has been done by the federal government for centuries

You know who doesn't do medical regulation? OSHA. Because they are not authorized to do it. You want to use "The Federal Government" to mandate a vaccine -- then pass a law.

> Note that this is exactly the same panel of the same circuit court that found two months ago that the Texas abortion law

You know the difference between the Texas abortion law and this executive order? One was a law, the other a decree.

Don't try to excuse rule by decree on the grounds that vaccines are good. Pass a law requiring them, but don't try to impose them via executive order. Respect the law.

> This is just lawless.

The executive order was lawless. If you want to mandate a vaccine, then pass legislation. If you think you can ban increases in rent, then do that via legislation. If you think CO2 should be regulated as a pollutant under the EPA, then pass legislation.

Stop trying to rule via executive order, and you can start moaning about lawlessness when actual laws, rather than decrees, are dismissed in the courts.

You're making up arguments that the fifth didn't even bother to, though. If that was their reasoning, then why didn't they say so?

The court responds to the arguments made before it. This was a motion for a temporary injunction so all the court said was "there are grave statutory and constitutional concerns" and so the relief was granted.

By the way, no one on the defense was foolish enough to make the kind of arguments you made - e.g. "The Federal Government has a history of regulating medicine, so this executive order is constitutional".

The real debate is whether it is in OSHA's purview to do this, which of course it's not, but with a sympathetic judge and lots of smoke being thrown in people's eyes, there is a hope that courts will overlook that. Most commentators predict this will not be found constitutional, just like the executive order banning evictions -- I mean, seriously?? And notice that there were no arguments saying that CDC actually had the authority to ban evictions, it was just emotionalizing at what bad things evictions are and so of course we should give the CDC this extra-legal authority.

And each time, people on the left are just shocked when the courts strike this down.

Look, you can stay in this bubble and be constantly surprised yourself, or you can dig into the legalities of executive orders on your own as well as this dirty legal history of OSHA. It's not a pretty picture, and you should not support using executive orders to change the scope of authority of regulatory bodies, because one day a President of the other party will be in charge and then you really don't want extra-judicial decrees to carry the force of law.

> This was a motion for a temporary injunction so all the court said was "there are grave statutory and constitutional concerns" and so the relief was granted.

That's right. And two months ago, with a case that had clear and obvious "constitutional concerns" (seriously, it undermined Roe!) they said "Nah, we're good" and refused to stay it. That's the problem here. They aren't making a legal finding at all, they're making a political finding. And you know it.

> The real debate is whether it is in OSHA's purview to do this

Not in this case it isn't. That hasn't even been heard yet. The question is whether or not to stay the mandate only.

The ninth circuit gets far more cases reversed than the fifth, and the sixth has the worst record upon review (though they don’t get many reviewed).

https://ballotpedia.org/SCOTUS_case_reversal_rates_(2007_-_P...

This isn't about getting it Right or Wrong though. This is about making pre-trial injunction decisions based on baldly partisan reasoning. The 9th and 6th may have a "partisan" view of jurisprudence, but they're consistently so. The fifth is making shit up. That's the lawless part. They don't care, they just want their side to win.

I'm sorry, but a federal agency creating a policy that will cause hundreds of thousands of Americans to lose their jobs without a law being passed by Congress is insane. And at this point in the pandemic and the total amount people vaccinated, how can the Osha say it needs an emergency request. Especially when they don't take into account for natural immunity which from all evidence is more durable than the vaccines? This is not in the purview of OSHA, and mandates can be done by state governments if they want to push it.

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