Sixth Circuit judge questions legality of Biden’s COVID vaccine mandate

President Joe Biden’s COVID-19 vaccine mandate on large U.S. employers is at risk of being axed before it ever even gets off the ground.

In a fiery dissent on a recent ruling, Judge Jeffrey Sutton, the head of the Sixth Circuit Court of Appeals — the court that will hear legal challenges to Biden’s mandate, argued that there are serious legal problems with Biden’s mandate, The Daily Wire reports.

Here’s the backstory

According to The Daily Wire, the Sixth Circuit was picked by a lottery to oversee the numerous legal challenges to Biden’s vaccine mandate. The president left it up to the Occupational Safety and Health Administration (OSHA) to implement the rule, which was just released by the agency.

OSHA’s requirements stipulate that American employers with more than 100 employees must either force their workers to get vaccinated against the coronavirus or get tested regularly beginning in January 2022. Employers that fail to comply are facing fines, and it is expected that employees who do not comply may face termination.

The Fifth Circuit had already issued a stay stopping the vaccine mandate from going into effect while challenges to it make their way through the courts. Now, in response to a challenge headed up by The Daily Wire, the Sixth Circuit has issued a decision denying a request to hear the case “en banc,” meaning in front of all of the court’s 16 judges, rather than just three of them.

The court rejected that request in an 8–8 vote. A simple majority of nine was needed.

A sneak peek for what’s to come?

What has really caught people’s attention, however, is the dissent that Sutton wrote following the decision. In his dissent, the judge argued that because Congress did not clearly give to the Secretary of Labor, and thus OSHA, the authority to impose the mandate, the vaccine rule is unconstitutional.

“It is one thing to tell a worker to don a mask at the start of a hazard-filled shift and doff it at the end,” Judge Sutton wrote, according to The Daily Wire. “It is quite another to tell a worker to vaccinate on the basis of a risk that exists whether he is on the clock or off and that amounts to a medical procedure that cannot be removed at the end of the shift.”

The judge went on:

Confirming the point, the Secretary of Labor has never imposed a vaccine mandate or for that matter a vaccinate-or-test mandate on American workers. The [Occupational Safety and Health Act] does not clearly give the Secretary power to regulate all health risks and all new health hazards, largely through off-site medical procedures, so long as the individual goes to work and may face the hazard in the course of the workday.

Judge John Bush, agreed with Sutton but wrote his own dissent to make an additional argument: that it would be unconstitutional for Congress to give OSHA such authority.

He wrote:

Whether it uses a clear statement or not, Congress likely has no authority under the Commerce Clause to impose, much less to delegate the imposition of, a de facto national vaccine mandate upon the American public. Such claimed authority runs contrary to the text and structure of the Constitution and historical practice.

The regulation of health and safety through compulsory vaccination is a traditional prerogative of the states — not the domain of Congress and certainly not fodder for the diktat of a federal administrative agency. Because we should have granted initial hearing en banc to vindicate the correct understanding of the Constitution and to cabin OSHA to its legitimate role, I respectfully dissent.

Only time will tell how the case ultimately plays out.

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