As many are aware, the Fifth Circuit Court of Appeals has already placed a stay on the rules’ implementation. In an error-riddled opinion issued on Nov. 6, the three-judge panel of that court (consisting of two Trump appointees and a Reagan appointee) signaled its outright hostility toward the rules and of OSHA itself, mocking the severity of the pandemic in the process with caustic, sarcastic terms such as “purported emergency.” It also omitted any acknowledgment of the deaths caused by COVID-19 in this country or the predicted number of lives saved if and when the new rules are implemented. As one legal scholar noted, the Fifth Circuit also misstated the scope of the regulation, and, as Bloomberg Law reports, appeared to deliberately misconstrue its option to have workers tested rather than vaccinated.
In short, the Fifth Circuit’s opinion demonstrated all of the legal acumen one could reasonably expect from judicial officers chosen for their political leanings rather than their competence. Under the consolidation procedure, however, the Fifth Circuit will not have the final say in the process (unless it is selected in the lottery). As noted by the legal publication JDSupra, any other circuit court chosen will have the power to modify or nullify Fifth Circuit’s stay. As legal correspondent Ian Millhiser, writing for Vox, explains, since the legality of the rules will ultimately be decided by the United States Supreme Court, the posture of the cases as decided and framed by the Court of Appeals thus selected should dictate (or at least influence) the breadth and scope of the high court’s ruling.
Of course, the Supreme Court is also dominated by right-wing hacks such as Neil Gorsuch and Clarence Thomas, who will doubtlessly find (or invent) any legal avenue necessary to try to strike down the Biden administration’s new rules. That is what makes this lottery so important. As Millhiser explains, in its partisan decision to stay those rules, the three-judge Fifth Circuit panel embraced a radical legal principle known as the “non-delegation” doctrine, a repudiation of literally decades-old caselaw which had established Congress’s clear authority to delegate responsibilities to federal agencies, and more importantly, required a high degree of deference of the judiciary to such delegation. By repudiating this doctrine, conservative jurists such as Neil Gorsuch (who has signaled his approval to such a repudiation) hope to open the door to the decimation of what conservative philosophy disdainfully regards as the ”regulatory state.”
So the Fifth Circuit’s opinion really wasn’t about COVID-19 (the severity of which they really didn’t even bother to acknowledge), or even about the Biden administration’s rules. It was a deliberate effort on the part of right-wing jurists to do what all right-wing jurists want to do—destroy the federal government’s ability to regulate safety in the workplace, thus benefiting corporations and their owners. If the “non-delegation” principle were to take hold, the ability of such agencies as OSHA and the EPA to do their jobs would be significantly curtailed. In the context of the OSHA rules requiring employers to ensure the vaccination of their employees, the scope of such rules would require a clearer mandate from the Congress itself. And by the time the case is decided, that Congress could very well be dominated by Republicans, who are completely hostile to any protection of workers, from COVID-19 or otherwise.
But there’s a reason why Congress does not involve itself in the minutiae of workplace safety and environmental regulation: they do not have the time, interest, or expertise to do so. What the Fifth Circuit hopes to do is require the likes of Reps. Marjorie Taylor Greene or Louie Gohmert to articulate the country’s workplace policies toward the COVID-19 pandemic. And that is not an exaggeration; it is the logical outcome of adopting such a radical doctrine.
As Millhiser points out, Trump’s seeding of the federal judiciary with partisan right-wing hacks has increased the odds of such an outcome exponentially, as whichever circuit actually gets these cases will in all likelihood assign their decision-making to a three-judge panel. And while the Fifth Circuit panel that has already stayed the rules:
are well to the right of the median federal judge … they aren’t extreme outliers. A large enough minority of federal judges hold similar views that conservative litigants can seek out these judges and secure court orders blocking Biden administration policies — even if those orders are eventually reversed by a higher court.
This is why Republican-dominated states and right-wing organizations filed their suit in the Fifth Circuit to begin with: they knew that they would almost certainly draw a business-friendly “conservative” panel. But in an attempt to “level the playing field,” progressive-leaning organizations such as the Service Employees International Union and AFL-CIO—organizations that actually represent the workers who would be affected—have also filed suit in some of the more “liberal-friendly” circuit courts, such as the Second and Ninth Circuit. That has at least increased the odds that a less reactionary court will draw the “lucky ticket.” But the odds still favor a conservative right-wing panel.
Even if the rules are overturned, employers will still have the option of requiring complete vaccination of employees. Some employers have expressed support for the rules because they can point to the government in the face of workers’ objections. But it’s relatively easy to predict how that regimen would ultimately turn out: businesses in “red” areas will be less inclined to impose such requirements, and the pandemic in those areas will continue to fester and mutate.
Ultimately, however, Tuesday’s “lottery” impacts 84 million working Americans. Their continued protection from the COVID-19 virus—particularly of those still unvaccinated—may well be sealed today, well before any of these cases are even argued. For many thousands of them, that may literally turn out to be the difference between life and death.