As the business community patiently awaits a ruling from the Sixth Circuit Court of Appeals on whether the Fifth Circuit correctly stayed the OSHA Emergency Temporary Standard, we did get a significant Sixth Circuit ruling yesterday.
The court confirmed that the entire court will not yet decide whether the ETS is legal. Less than a majority of the active Sixth Circuit judges voted in favor of an initial hearing en banc. Instead, a three-judge panel will decide the case, and, perhaps later, the entire bench will weigh in.
But Chief Justice Sutton, one of the judges who voted in favor of an en banc panel, didn’t stop there. He published a 37-page dissent in which he explained why the entire Sixth Circuit should hear the case now and why the ETS is doomed.
Here’s the condensed bullet-point version:
- The ETS is an overreach. OSHA has assumed authority to regulate an area—public health and safety— traditionally handled by the States. When that happens, Congress must greenlight it first. That didn’t happen here.
- COVID-19 is not a grave danger to the workplace. A critical demographic (the elderly) no longer work. Unvaccinated have chosen for themselves not to get the vaccine. OSHA has admitted that the remaining vaccinated workers do not face grave risk.
- No notice-and-comment period. OSHA did not invoke the ETS based on a “sudden revelation” that COVID-19 presented a health risk. Instead, OSHA relies on the increased availability of vaccines. “Ready access to free vaccinations may not have quelled the pandemic as quickly as the Secretary, or any of us would like. But that reality does not justify, much less justify clearly, a sudden invocation of an emergency medical power at roughly the two-year
anniversary of the pandemic merely because the Secretary determines that not enough Americans are vaccinated.”
The bottom line, according to Chief Judge Sutton, is that “no matter the policy benefits of a well-intended regulation, a court may not enforce it if the agency’s reach exceeds a statute’s grasp.” Greenlighting the ETS would undermine the separation of powers.
You can read his entire dissent here.
OSHA faces slim odds of getting the conservative Sixth Circuit to reverse the ETS stay. But, if Chief Judge Sutton is part of the three-judge panel that decides the case, those odds may go from slim to none.