Our friend Dr. Briggs has done the heavy lifting dissecting what the good court had to say. Lots of zingers. Enjoy.
AUSTRIANS CONCENTRATING ON COVID
DAYS OF YORE
That which has been is what will be, That which is done is what will be done, And there is nothing new under the sun.
Now what could be the cause, dear Experts? It can’t be cold air by itself. It has to be something else.
All you lockdown fans, please answer first.
HERE COME DA JUDGE
Much good news in Fifth Circuit’s reaffirming the stay of Biden’s dictate, which happened late last Friday. The Court order can be found here.
First, and obvious, the stay remains in place until a full review. If Biden again dictates “Ignore the Court”, we have a real cold civil war upon us. By “Biden” I of course mean those telling him what to say.
Second, Court said “We first consider whether the petitioners’ challenges to the Mandate are likely to succeed on the merits. For a multitude of reasons, they are.”
This is cheering. Then this juicy bit, to which we can all say Amen (I don’t attempt to reproduce all the italics and special marks):
We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651 (statement of findings and declaration of purpose and policy). It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine—intended 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. Cf. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488–90 (2021) (per curiam).
Next: “On the dubious assumption that the Mandate DOES pass constitutional muster—which we need not decide today—it is nonetheless fatally flawed on its own terms.” These reasons are given.
This is just plain hilarious.
The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years,10 and which OSHA itself spent nearly two months responding to11—is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.
Judges are now better scientists than our best Experts:
But the Mandate at issue here is anything but a “delicate exercise” of this “extraordinary power.” Cf. Pub. Citizen, 702 F.2d at 1155. Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-sizefits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.
There is a discussion of the asinine Don’t Sit Here, Sit There Fallacy our rulers love, which insists workers can only get infected at offices (only if unvaccinated) and nowhere else. This is one of the dumbest fallacies Experts concocted during the crisis they caused.
“We have to fire you because you can get infected on the job, or may infect somebody else on the job.”
But I can’t get infected elsewhere, or can’t infect anybody else elsewhere?
“Trust us. We’re Experts.”
Fact checkers agree with you. You are Experts.
Here, 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 transparent stretch.
More exposure of the Don’t Sit Here, Sit There Fallacy:
A natural first step in enacting a lawful ETS is to show that employees covered by the ETS are in fact exposed to the dangerous substances, agents, or hazards at issue—here, COVID-19. See, e.g., Int’l Chem. Workers, 830 F.2d at 371 (noting OSHA’s stated view “that a finding of ‘grave danger’ to support an ETS be based upon exposure in actual levels found in the workplace”). As it pertains to the vast majority of private employees covered by the Mandate, however, OSHA fails to meet this threshold burden.
The Court then cogently argues that the risk, even on Biden’s terms, has not been shown to be grave, or even more than meh, given so many people already infected, vaxxed, or are young and healthy.
Next comes a stunner.
It is thus critical to note that the Mandate makes no serious attempt to explain why OSHA and the President himself were against vaccine mandates before they were for one here.
Several prior quotes from OSHA officials saying no to mandates. Walk that back, Experts!
Two more quotes:
The Mandate is staggeringly overbroad…
OSHA itself admitted that ‘an ETS once issued could very well become ineffective or counterproductive, as it may be informed by incomplete or ultimately inaccurate information.’
Why the magic number of 99 employees?
At the same time, the Mandate is also underinclusive. The most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer. The reason why? Because, as even OSHA admits, companies of 100 or more employers will be better able to administer (and sustain) the Mandate.
Court affirms OSHA’s own actions say there is no emergency: “the Mandate flunks a cost-benefit analysis”.
The most important argument, I think, especially as we try to grasp the outlines of our expertocracy, is that OSHA delegates itself police power.
A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity…And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power.
Court points out that if this stands, the government can essentially order citizens to do anything. “Courts ‘always have rejected readings of the Commerce Clause . . . that would permit Congress to exercise a police power.’” [Ellipses original.]
Second, concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.
Next comes the harm to businesses (which is to say people, you).
It is clear that a denial of the petitioners’ proposed stay would do them irreparable harm.
The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.
States rights! Incidentally, it was hilarious to see the left invoke state rights in the Rittenhouse trial, telling us ad naseum that young Kyle “crossed state lines.” The South shall rise again!
Sweet line next:
In contrast, a stay will do OSHA no harm whatsoever.
From economic uncertainty to workplace strife, the mere = specter of the Mandate has contributed to untold economic upheaval in recent months.
Next a well deserved OHSA spanking.
But health agencies do not make housing policy, and occupational safety administrations do not make health policy. [Yet they do!]
OSHA runs afoul of the statute from which it draws its power and…violates the constitutional structure that safeguards our collective liberty.
Judge Duncan writing separately concurs and calls OSHA out for greedy sloppiness: “OHSA invokes no statute expressly authorizing the rule.”
Who knows what the simps and cucks that comprise the majority of SCOTUS will do, but this order is a double-edged serrated knife through OSHA’s heart.
It also says nothing directly about Biden’s other dictate that Fed employees and contractors will lose their jobs on December 8 (that’s the one getting my family). So that one is up in the air, too.
How many times have I told you? Rulers call for a result and midwit Experts, anxious to curry favor, “discover” that result.
This just is the expertocracy. We must replace their Experts with our own…
Read the rest: https://wmbriggs.com/post/38099/