To recap, the Fifth Circuit recently stayed the implementation of the Biden Administration’s OSHA-created COVID vaccine mandate. I think the Fifth Circuit’s decision is clear, cogent, and powerful. Here it is and it is well worth reading.
5th Stay

And let’s face it, there aren’t many opportunities to read appellate court decisions which temporarily stop a vaccine mandate and which agree with what you believe in.

One of the most heartening things about the opinion for those opposed to the COVID mandate is its recognition that the mandate is overinclusive in part because it doesn’t take into account that previously infected people have natural immunity and presumably might not need the vaccine as much as the unvaccinated.

To my knowledge, this is the first time a court has recognized this critically important point. Natural immunity was the basis of two lawsuits filed in the Central District of California. Neither succeeded in obtaining a preliminary injunction and the courts didn’t give the natural immunity argument the time of day.

So, that a court – and an appellate court to boot – acknowledged that natural immunity exists and that it is a factor in evaluating a vaccine mandate, is to me, a very big thing. It opens up all kinds of possibilities that had heretofore been closed.

This is especially important since I think more and more studies and larger studies will show the dramatically better effectiveness of natural immunity over the COVID vaccines. At some point, I think the courts will be forced to recognize this difference and require different rules for the previously infected. That point could be pretty soon if the Sixth Circuit adopts the Fifth’s recognition of this fact (or technically it was something the Fifth presumed to be the case based on the evidence presented). So, we might be at the beginning of seeing the tide turn on the natural immunity argument.

Back to the Sixth Circuit and what it is facing. The DOJ just filed its request to dissolve the Fifth Circuit’s stay of the OSHA COVID vaccine mandate. Here is its brief.
Biden Motion to Dissolve Stay(2).

No big surprises here. We’re the federal government and we have to protect workers, and we’re still in an emergency and we know best. After looking over the motion, I’m still not seeing it and I think judges, especially conservative judges, are going to have a hard time granting that kind of power over such a big chunk of the nation’s workforce on a one-size-fits-all approach.

I am still predicting that the Sixth Circuit will continue the stay. If it does, then for sure the three liberal Supreme Court justices will want to take the case up on its shadow docket. And the three conservative justices won’t. That leaves three less extreme conservatives. It would only take one of the three to hear the case. One big problem which one or two of them had with prior cases was the lack of a complete record, which could weigh against their voting to hear the case on the limited record. That might be more of a factor if the Sixth terminates the stay.

But in the end, this is the federal government that would be requesting to overturn the Sixth’s stay on a very, very big deal case that has an impact on tens of millions of workers. Therefore, for that reason alone, I can easily see the Supremes weighing in on this even without a full record.

And that’s what I’m going with. The Supremes will hear the case if the Sixth continues the stay. If the Sixth rescinds the stay, the Supremes might still take it, if for no other reason that there would be a conflict between the circuits in decisions (though not actually because the Sixth has all the cases now). Every once in a long while there is a case that is just too big, important, and consequential for the Supremes to ignore, despite the paucity of the record. I think this is one of them.

Ultimately, I just don’t see the conservative majority letting Joe Biden order every single employee in the US who works for a company with over 100 employees to get a vaccine. That is just too much power for one man or the federal government. I think that is going to deeply trouble the conservatives. Also, look for another passionate opinion with some wonderfully constructed catchphrases from master phrasesmith Justice Gorsuch in a concurring opinion.

In short, I don’t think either the Sixth or the Supremes are going to let this go into effect. So, if you are affected by the OSHA COVID mandate and you don’t want to get the shot, keep doing nothing!

Rick Jaffe, Esq.