Thread by @therealarod1984

The 5th Circuit Court of Appeals not only Stayed OSHA's mandate, they destroyed it, and laid down the legal groundwork for it to be easily struck down.

Might take a couple of days, but I'll go through the ruling page by page.

THREAD

1/n

dl.airtable.com/.attachments/d…

The ruling by Judge Engelhardt begins by going through the rarity and difficulty of OSHA using the Emergency Temporary Standard that they are utilizing for this Mandate. In 50 years of history, 10 ETSs have been issued, and only 1 survived.

2/n
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To grant a Stay, a court considers 4 factors. In this case, each of these factors favor a stay. The next several pages will delve into the four factors, starting with whether the challenge to the Mandate is likely to succeed.

3/n

OSHA..."was NOT intended to authorize a workplace safety administration...to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways"

Scathing start and it only gets better from here.

4/n

The Mandate is both

* Overinclusive - it applies to virtually everyone with little attempt to account for the obvious differences in risk
* Underinclusive - makes no attempt to shield employees with 98 or fewer coworkers. This underinclusiveness will be broken down further

5/n

The Mandate's supposed reason is to protect workers from an emergency. An "emergency" that has been ongoing for nearly 2 years, and it took 2 months for OSHA to respond to it once the President decided an ETS was the vehicle to create a national vaccination mandate

6/n

More commentary on how ETS is historically only used as an "unusual response to exceptional circumstances."

However in this case, the ETS is a "one-size-fits-all sledgehammer."

Strong language that fits. Love this section as it breaks down how varied risk is to C19.

7/n

Ruling then moves into what OSHA specified criteria an ETS must meet in order to be lawful.

An ETS must alleviate exposure to toxic substances or agents, and cover workers that are in grave danger of being exposed.

You can guess what their opinion is going to be....

8/n

OHSA's ETS requirements are then broken down.

* Texas' argument that a virus is outside this definition is "compelling"
* OSHA attempting to "shoehorn" Covid as a toxin and poison is a "transparent stretch"
* OSHA is contradicting its own prior statements under oath

9/n

More on how this Mandate does not fit OSHA's definition of an ETS.

"OSHA cannot possibly show that every workplace covered by the mandate currently has Covid....or will have outbreaks"

"OSHA fails to meet this threshold burden"

10/n

More on this ETS not meeting OSHA's own criteria:

* Unclear if Covid poses grave danger - i.e. exposure guaranteed to cause cancer
* The ETS itself concedes effects of C19 may be mild
* 78% of Americans are vaccinated
* The Admin assures that the vaxxed are at little risk

11/n

Breaking down how "Staggeringly Overbroad" this Mandate is:

* "Fails almost completely" to consider how Covid is more dangerous to some employees than to other employees, based on job type, age & most importantly:
* Natural Immunity and how it also decreases risk

12/n

Now back to how the Mandate is also "Underinclusive."

* The most vulnerable workers in America receive no protection if the company employs 99 or fewer
* Why? Because <99 organizations will struggle to administer the mandate
* This undercuts the "Emergency" premise...

13/n

Uninclusiveness Part 2

* Underinclusiveness of this kind is a "telltale sign that the govt's interest is not in fact "compelling""
* Also means the "Mandate's true purpose is to ramp up vaccine uptake by any means necessary"

OUCH

14/n
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Additional reasons why the Mandate is a loser in court:

* OSHA ETS cannot be used as a stop-gap measure, OSHA concedes that's what this is
* Courts weigh the protection afforded by an ETS outweighs the economic consequences"
.
The "Mandate flunks a cost-benefit analysis"

15/n
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Lastly, the Mandate will likely lose on Constitutional concerns around the Commerce Clause, because it regulates noneconomic inactivity that falls squarely to the States, and the Mandate far exceeds constitutional authority

16/n
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Summing up Criteria #1 for the granting of a Stay - great likelihood of success on the merits, the ruling then summaries why it a denial of a Stay would do the petitioners irreparable harm

17/n
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"The Mandate threatens to...burden...individual(s) [to choose] between their jobs(s) and their jabs(s)
.
Wow.

Also companies seeking a stay will be harmed by loss of employees, compliance costs, or OSHA's financial penalties.

18/n
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Additionally the states will be harmed in seeing their constitutionally protected power lost to federal overreach.

Meanwhile a stay does OSHA zero harm.

Love the note at the bottom regarding the loss of free religious exercise

19/n
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A Stay is in the public interest, due to economic upheaval and workplace strife due to the specter of the Mandate. Constitutional structure is in the public interest, as is the "liberty of individuals to make intensely personal decisions according their own convictions"

20/n
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Love this final shot:

"Health agencies do not make housing policy and occupational safety administrations do not make health policy"

OSHA likely "violates the constitutional structure that safeguards our collective liberty."

Bam.

21/n
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The Stay is GRANTED. Enforcement of the ETS is STAYED pending adequate judicial review, and further, OSHA is ordered to take no steps to implement or enforce the Mandate until further court order.

22/n
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Judge Duncan concurs in a 1 pager, simply stating that while it might be a hard question to decide whether or not Congress could constitutionally pull off this mandate, its not a hard question to know if OSHA could.

LOL.

23/n
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In normal reality, the OSHA Mandate will be struck down, either by an Appellate Court or by the SCOTUS. The case is too strong.

But I realize we are living in the Upside Down, so I leave the door cracked for idiot judges to do idiot things. Let's pray not.

24/end