Stripping the national government of the power to protect the public health. - 5th Circuit Court of Appeals

 It keeps getting worse. In 1916 the Supreme Court in Hammer v. Dagenhart voided the Child Labor Act, affirming a fourteen year old boy's right to labor in a textile mill.  Today's ruling has a similar ring. The Court of Appeals for the Fifth Circuit has stayed enforcement of the OSHA Emergency Temporary Standard compelling covid-19 vaccination or regular testing by large employers.  - gwc

BST Holdings v OSHA  5th Circuit November 12, 2021

Opinion by Kurt D. Englehardt, C.J.

First, the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. Cf. NFIB v. Sebelius, 567 U.S. 519, 522 (2012) (Roberts, C.J., concurring); see also id. at 652–53 (Scalia, J., dissenting). And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power. Zucht v. King, 260 U.S. 174, 176 (1922) (noting that precedent had long “settled that it is within the police power of a state to provide for compulsory vaccination”); Jacobson v. Massachusetts, 197 U.S. 11, 25–26 (1905) (similar).

 

The Mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing. 86 Fed. Reg. 61,402, 61,407, 61,437, 61,552. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power. See Sebelius, 567 U.S. at 554 (Roberts, C.J., concurring) (“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.”); see also Bond v. United States, 572 U.S. 844, 854 (2014) (“The States have broad authority to enact legislation for the public good—what we have often called a ‘police power.’ . . . The Federal Government, by contrast, has no such authority. . . .” (citations omitted)).

 

Indeed, the courts “always have rejected readings of the Commerce Clause . . . that would permit Congress to exercise a police power.” United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring). In sum, the Mandate would far exceed current constitutional authority.