“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.
In their own version of the “shadow docket”, Trump Fifth Circuit judges Kyle Duncan and Kurt Engelhardt helped issue a one-sentence unsigned order that stopped the Biden Administration rule that requires large corporations to ensure that their workers are vaccinated for COVID-19, with a decision forthcoming on whether to make their order permanent. The November 2021 order was in BST Holdings LLC v Occupational Safety and Health Administration (OSHA).
As previously announced by President Biden, OSHA issued a rule on November 4 that requires companies with 100 or more employees to ensure that employees are vaccinated for COVID-19 or undergo weekly testing in order to combat the still-raging pandemic. The rule was scheduled to take effect on January 4, with unvaccinated employees required to wear masks beginning on December 5. The day after the rule was issued, lawsuits were filed across the country by Republican states challenging the rule, including review petitions to the Fifth Circuit court of appeals filed by Texas and several other states plus some businesses.
The day after the petitions were filed, before even seeing any response from OSHA, Trump judges Duncan and Engelhardt, joined by conservative judge Edith Jones, issued a brief order stopping the rule in its tracks. With no opinion, and saying only that the review petitions “give cause to believe there are grave statutory and constitutional issues” raised by the rule, the panel stayed the rule indefinitely until “further action by this court,” with briefs to be filed by November 9 on whether a “permanent injunction” against the rule should be granted.
Even though the rule does not come into even partial effect for another month, the OSHA rule was frozen literally a day after the lawsuit against it was filed. Texas Attorney General Paxton declared immediate victory in a tweet, even though he recognized that the “fight is not over” and the Department of Labor’s top lawyer expressed confidence that the rule was lawful, noting that the OSHA law “explicitly gives OSHA the authority to act quickly” where there is a “grave danger” to workers and a “new standard is necessary to protect them,” as in this case.
What will happen next in this case may well depend on Trump judges Duncan and Engelhardt, and ultimately the Supreme Court. The Fifth Circuit decision has already drawn severe criticism. Former OSHA official David Michaels characterized it as a “faulty ruling with political motivations” by the same “activist” court that “refused to stay” the draconian Texas six-week abortion ban, noting that the OSHA rule is “clearly within OSHA’s authority, will save lives and make workplaces safe.” The case illustrates the importance, as part of our fight for our courts, of confirming fair-minded judges who will respect federal agency authority.