“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.
Trump Eleventh Circuit judges Britt Grant and Robert Luck cast deciding votes to effectively affirm a Trump district court nationwide order that has blocked the Biden Administration COVID-19 vaccination mandate concerning federal contractors. On the same day, Trump Sixth Circuit judge Joan Larsen tried to stop the court from allowing the requirement to go forward that big businesses ensure that workers are vaccinated or masked and frequently tested. The December 17 Eleventh Circuit order was in Georgia v Biden. The December 17 Sixth Circuit opinion was in In re MCP No. 165.
As discussed in this blog, Trump district judge Stan Baker in Georgia issued a preliminary injunction earlier in December that blocked nationwide the important requirement issued by the Biden Administration that corporations and others who contract with the federal government must ensure that their workers are vaccinated against COVID-19 by January 22. This was despite the view of experts that there was good legal support for the Administration order and the significant criticism of nationwide orders by district courts that go far beyond the parties in the case, and apply across the country.
The Justice Department promptly appealed and asked for a stay of the order, at least with respect to its application across the entire country. But in an unsigned December 17 one-paragraph opinion by three judges, including Trump judges Grant and Luck, the Eleventh Circuit denied the stay, claiming without analysis that the government had not shown “irreparable injury” without a stay. This was despite, for example, a brief submitted by the American Medical Association and 14 other national medical and health groups explaining why the continuation of the preliminary injunction will “cause grave, severe, and irreparable harm.”
On the same day, however, there was much better news in the battle against COVID-19. As discussed in this blog, two Trump judges on the Fifth Circuit had cast key votes in November to issue a stay that blocked the Occupational Safety and Health Administration (OSHA) requirement that corporations with more than 100 workers ensure that their workers are vaccinated against COVID-19 or masked and frequently tested. All the many challenges against the OSHA rule were consolidated in the Sixth Circuit, and the government moved to dissolve the stay against the rule. On December 17, in a 2-1 decision with Trump Judge Joan Larsen dissenting, the Sixth Circuit did exactly that, and put the OSHA requirement back into place.
Trump judge Larsen tried to keep the OSHA rule blocked on grounds similar to those used by the Trump judges on the Fifth Circuit, arguing in dissent that OSHA “lacks statutory authority” from Congress to issue it and that businesses will be “irreparably harmed” without a stay. But the majority, including conservative Judge Julia Smith Gibbons nominated by President George W Bush and Judge Jane Stranch nominated by President Obama, clearly answered these and other arguments and explained the importance and validity of dissolving the stay. The majority opinion by Judge Stranch carefully analyzed the Congressional OSHA law, and found that the statute’s “language” and “structure” as well as “[l]ongstanding precedent” clearly give OSHA authority to “protect workers against infectious diseases” like COVID-19. The record also shows the “need for issuing” the rule, she went on, including the “pervasive danger that COVID-19 poses to workers” in the workplace, and that the costs are “modest,” less than “2 cents” per “$100 product or service.” The majority also meticulously reviewed the constitutional and other objections to the OSHA rule, and found that they “do not have a meaningful likelihood of success.” To “protect workers” as it is mandated to do, the majority concluded, “OSHA can and must be able to respond to dangers as they evolve” and implement the COVID-19 rule.
In a powerful concurring opinion, Judge Gibbons appeared to be speaking directly to the Trump judges and others who have sought to obstruct the OSHA and other COVID-19 vaccination rules. Individual judges may disagree with “OSHA’s approach,” she wrote, but “we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities.” This principle is mandated by the Constitution, Gibbons continued, which separates “our branch from our political co-branches.” In addition, she made clear, the “work of an agency, often scientific and technical in nature, is outside our expertise.” The judiciary’s “only responsibility,” Judge Gibbons emphasized, is to determine whether OSHA has “acted within the bounds of its statutory authority and the Constitution.” Because it “likely has done so,” she concluded, the stay of its important rule should be dissolved.
Although OSHA is now proceeding to implement its COVID-19 rule, both these cases are far from over. Numerous opponents have challenged the Sixth Circuit ruling in the Supreme Court, and the Justice Department is scheduled to file its initial response to efforts to reverse the decision by December 30. And although the Eleventh Circuit kept the freeze on the contractor requirement in place, it did order expedited briefing on the appeal to be completed by January 24. Although the Supreme Court will likely decide that case as well, the delays in the implementation of this and other COVID-19 vaccination requirements by Trump judges are clearly harmful and may cost many lives. Both these cases illustrate the importance, as part of our fight for our courts, of the Senate continuing to promptly confirm fair-minded judges who will not improperly second-guess agencies like OSHA and will respect properly issued rules that are crucial to help deal with the COVID-19 pandemic.