Thread by @ReformedTrader

1/ BST Holdings, LLC. v. OSHA (United States Court of Appeals, Fifth Circuit; Nov 12, 2021)

"This case concerns OSHA’s most recent ETS requiring employees of covered employers to undergo COVID-19 vaccination or take weekly COVID-19 tests & wear a mask."

casetext.com/case/bst-holdi…

2/ NOTE: The tone and degree of expressed certainty in this document runs counter to most of the academic papers I read (one reason I stay away from material sourced from politics and law).

As always, when policy makers are concerned, take everything with an extra grain of salt.

3/ "In its fifty-year history, OSHA has issued just ten emergency temporary standards (ETSs). Six were challenged in court; only one survived.

"We reaffirm our initial stay.

4/ "OSHA likely could not be, under Commerce Clause & nondelegation doctrine, intended to authorize a workplace safety administration in the deep recesses of federal bureaucracy to make sweeping pronouncements on public health affecting every member of society in profound ways.

5/ "The Mandate at issue here is anything but a “delicate exercise” of this “extraordinary power.” It is a one size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) bear on workers’ varying degrees of susceptibility."

6/ "OSHA’s attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another stretch."

7/ "OSHA is required to make findings of exposure—or at least the presence of COVID-19—in _all_ covered workplaces.... This kind of overbreadth plagues the Mandate generally."

8/ "All else equal, a 28-year-old trucker spending his workday in the solitude of his cab is less vulnerable than a 62-year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus."

9/ "The Mandate derives its authority from an old statute employed in a novel manner, imposes $3 billion in compliance costs, involves broad medical considerations outside OSHA’s core competencies, & purports to definitively resolve one of today’s most hotly debated issues."

10/ "There is no clear expression of congressional intent to convey OSHA such broad authority, and this court will not infer one.

"The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.

11/ "The public interest is served by maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials.

12/ "Health agencies do not make housing policy, and occupational safety administrations do not make health policy. In seeking to do so here, OSHA runs afoul of the statute from which it draws its power.

13/ "Enforcement remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.

"IT IS FURTHER ORDERED that OSHA take no steps to implement or enforce the Mandate until further court order."