Biden Vax-or-Test Mandate to be Challenged by 6th U.S. Circuit Court of Appeals in Cincinnati

November 18, 2021

Photo courtesy of Axios

Just yesterday, a U.S. appeals court in Cincinnati was designated as the official referee for all legal challenges arising on the basis of the Biden administration’s Covid-19 vax-or-test mandate. So far, dozens of said legal challenges have been filed across the country, largely petitioning for federal appeals courts to review the mandate’s rules that have been set forth by the Occupational Safety and Health Administration (OSHA). Given the sheer number of lawsuits being filed on the matter, a lottery was established to consolidate the cases before a single court. 

The Vax-or-Test Mandate

Biden’s mandate, which was announced last month, sets a requirement for all businesses with 100+ workers to ensure that their employees either get vaccinated or submit to weekly testing paid for by their employer. Noncompliance can put employers at risk of penalties of up to $13,600 for each violation. Although the mandate has a far reaching impact, given its low overall requirement number of 100 employees, it does not apply to businesses that have: 1) employees who don’t report to a workplace with other employees present, employees who only work from home, and employees who only work outdoors. 

Scheduled to take effect on January 4th, this controversial mandate has generated a variety of reactions from the public. For those who oppose it – such as several Republican-led states, private businesses, and religious groups –  initiating a lawsuit has been an effective outlet. The opposition’s central point is that the Labor Department and Congress have gone beyond their granted powers to implement this mandate, thereby constituting an unlawful government overreach; this refers to the Labor Department’s authority and to Congress’ ability to delegate to federal agencies. Furthermore, the opposition believes that this mandate also impinges on the First Amendment, the Constitution’s Commerce clause, laws protecting religious freedom, and other legal arguments according to the Wall Street Journal. Others, however, believe that not only is this mandate necessary, but it is actually not far-reaching enough given the current state of the pandemic. 

Why the Cincinnati Court?

So why was a court in Cincinnati chosen as the referee? As mentioned prior, the number of lawsuits filed effectively prompted the decision to create a lottery. As such, this lottery was conducted by the U.S. Judicial Panel on Multidistrict Litigation on Tuesday in order to determine which of the 12 regional appeals courts would become “home-base.” The winner: the Sixth U.S. Circuit Court of Appeals in Cincinnati. 

It is important to look a little deeper. Out of the 16 judges making up this Cincinnati court, 11 were appointed by Republican presidents; 6 of those 11 were appointed by former president Trump. Although we won’t know yet who exactly will be hearing the consolidated challenge, many are growing increasingly skeptical of the court’s makeup. What could perhaps serve as precedent for this decision is that the court has previously struck down a Covid-19-related case in which it denied religious and private schools in Kentucky the ability to reopen while in the midst of a Covid-19 case-surge. 

What Does This Mean for Other Courts?

In any case, the outcome of the lottery cements the fact that the Cincinnati court, and no other court, will have control of mandate-related cases filed. This notably includes the 5th Circuit New Orleans-based Court, which has led the legal opposition to Biden’s numerous Covid-19 initiatives over the past months. 

The 5th Circuit 

The New Orleans-based 5th Circuit Court of Appeals, just earlier this month, issued a preliminary stay effectively blocking the mandate for the moment. In its decision, the Court instructed the administration to “take no steps to implement or enforce [the mandate]” on the basis that those entities challenging the rule “show a great likelihood of success on the merits.” It also recently added that, by enforcing the mandate, the administration would create economic upheaval. 

In response, the administration maintained that the mandate is in solid legal footing, and is inherently necessary given the current state of Covid-19. OSHA and Labor Department attorneys reportedly told 5th Circuit judges that those entities challenging the mandate will likely fail because of “the considerable evidence that OSHA analyzed and discussed when issuing the requirement.”  Further, the attorneys argued that “…petitioners [have not] shown that their claimed injuries outweigh the harm of staying a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.” 

What Happens Now

The 5th Circuit’s stay was only temporary, however, pending the decision of which court would retain jurisdiction – which now means that 2 actions will take place:

  1. The Biden administration needs to issue a response to that order in the 6th Circuit
  2. The Justice Department needs to ask the 6th Circuit to lift the 5th Circuit’s stay

This will likely not be the end of the matter, however. Given whoever loses still has the ability to request a rehearing before all judges in the circuit, as well as request a Supreme Court review, the 5th Circuit willlikely not be the last arbiter with the final say. And given the far-reaching scope of this mandate, the Supreme Court review could plausibly take place before the January 4th deadline. 

Besides the obvious legal significance that this whole process holds, the Biden administration has stated that, should the stay of the vax-or-test mandate remain in place, it will “likely cost dozens or even hundreds of lives per day.”

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