In earlier litigation before the Fifth Circuit, the Justice Department argued that the rule was necessary to protect workers from the pandemic and was well grounded in law.
Blocking the mandate “would likely cost dozens or even hundreds of lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous costs,” the Biden administration said in one such filing. “That is a confluence of harms of the highest order.”
The Fifth Circuit panel, however, sided with the plaintiffs, writing that in enacting the law that created OSHA and empowered it to issue “emergency” rules to protect workplace safety, Congress did not intend “to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.”
As a whole, the Sixth Circuit also tilts conservative. Of its 16 sitting judges, 5 were appointed by Democrats and 11 were appointed by Republicans. (However, one of the Republican appointees, Judge Helene N. White, was originally a nominee of a Democratic president, Bill Clinton, before being renominated by a Republican one, George W. Bush, as part of a political deal.)
The circuit also has 10 active “senior status” judges, meaning they are semiretired but still sometimes are assigned to panels; of those, two are Democratic appointees and eight are Republican appointees.
Whatever the Sixth Circuit does with the matter, the case appears destined to reach the Supreme Court for a definitive resolution.