Amicus Brief: BST Holdings, LLC, et al. v. Occupational Safety and Health Administration, et al. 

Washington, DC (December 7, 2021) – The Occupational Safety and Health Administration’s (OSHA) attempt to impose an invasive “vaccinate-or-test” requirement on over half the nation’s workforce is an unprecedented and unconstitutional exercise of legislative power—power which the Constitution vests solely in Congress. In an amicus brief filed today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil liberties group, argues that the Sixth Circuit should maintain the stay issued in the Fifth Circuit against enforcement of OSHA’s Emergency Temporary Standard (ETS). NCLA had urged the Fifth Circuit’s stay in a prior amicus brief.

NCLA’s brief reminds the court that an executive agency may not issue regulations to resolve “major questions” of economic and political significance. Even if Congress had explicitly and specifically delegated such authority to OSHA, which it did not, Congress still must provide intelligible principles for the agency to follow. Otherwise, the executive agency would be exercising legislative power vested solely in Congress, which violates citizens’ right to be subject only to laws enacted by their elected representatives. But here the court does not even need to reach the intelligible-principle inquiry, because the lack of any purported delegation of statutory authority for OSHA’s action is blatant.

The breadth and invasiveness of the ETS marks it as a regulation of vast economic and political significance. The Biden administration has openly admitted that the ETS has nothing to do with workplace risks. Rather, it was promulgated “to reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements—these requirements will become dominant in the workplace.” Because Congress never explicitly authorized OSHA to enact a nationwide vaccine mandate, OSHA’s attempt to impose one is a forbidden exercise of legislative power.

NCLA argues that the Sixth Circuit must prevent OSHA from wielding legislative power and thus may not defer to OSHA’s factual conclusions and legal interpretations. The facts and law are no different today than they were a month ago when the Fifth Circuit issued its stay. There are no exceptional circumstances to disturb that decision because OSHA’s promulgation of the ETS remains an unconstitutional act. As the brief puts it: “Few circumstances undermine the rule of law more thoroughly than the doctrine of ‘same facts, same law, new court, different outcome’ that the Government seeks here.”

NCLA also represents clients before the United States District Courts for the Western District of Michigan and the Southern District of Texas, challenging similar government-imposed vaccine mandates as a condition of employment.

NCLA released the following statements:

“The Supreme Court recently warned that even emergency regulations may not exceed the scope of an authorizing statute when it struck down the government’s attempt to impose a nationwide eviction ban through a health statute concerning fumigation and extermination. The government has apparently learned nothing and is now trying to impose a nationwide vaccine mandate through a statute that concerns workplace hazards. The Fifth Circuit’s stay of that mandate should surprise no one and must be maintained to ensure the rule of law.”
— Sheng Li, Litigation Counsel, NCLA

“The rule of law would be damaged by the government’s assertion that the same law and the same facts, but a change of court, allows it a different result a few weeks after the preliminary injunction was entered. The OSHA Rule hasn’t become any more lawful in the last month, and the stay should remain in place.”
— John Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (November 9, 2021) – The Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) on November 5, 2021, requires employers with 100 or more employees to either implement a mandatory COVID-19 vaccination policy or force employees to present a weekly negative COVID-19 test. The ETS is unprecedently broad, invasive, and an unconstitutional exercise of legislative power vested in Congress. Today, the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed an amicus brief in BST Holdings, LLC, et al. v. OSHA, et al. in the U.S. Court of Appeals for the Fifth Circuit, challenging the mandate.

OSHA’s ETS is expected to force 84 million employees nationwide—over half the U.S. workforce—to either take a novel vaccine against an infectious disease, navigate weekly costly testing, or forfeit their jobs. Nothing in the Occupational Safety and Health (OSH) Act, however, suggests that OSHA has authority to issue the ETS, which stands completely outside of OSHA’s expertise in work-related health and safety. Congress would first have to explicitly and specifically authorize OSHA to issue such a mandate, but it has not.

In this way, the ETS vaccine mandate bears close resemblance to the U.S. Centers for Disease Control and Prevention’s (CDC) nationwide eviction moratorium, which the Supreme Court struck down as unconstitutional in August. According to the Court, if Congress meant for CDC to have vast power over evictions, it would have said so instead of, as the CDC argued, hiding that authority in a decades-old public health statute concerning fumigation and pest extermination. OSHA is taking a page out of CDC’s defective playbook, claiming to have discovered never-before-exercised regulatory powers in a decades-old workplace safety statute to impose a nationwide vaccine mandate for a virus that is not confined to workplaces.

President Biden has even openly admitted that the ETS has nothing to do with workplace risks. Rather, it was promulgated “to reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements—these requirements will become dominant in the workplace.” The Supreme Court said in Utility Air Regulatory Group v. EPA: “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.” The U.S. Court of Appeals for the Fifth Circuit should do the same here and see through OSHA’s attempt to impose a nationwide vaccine mandate under the guise of workplace safety. Because Congress never explicitly and specifically delegated such authority, the ETS is an unconstitutional exercise of legislative power.

NCLA released the following statements:

“Congress does not hide sweeping delegation of regulatory power in the penumbra of statutory text to be discovered by the Executive Branch decades later as a ‘work around’ for whatever policy it deems fit. If OSHA’s statutory powers say nothing about forcing over half the U.S. workforce to vaccinate or become unemployed, it is because that power does not exist.”
— Sheng Li, Litigation Counsel, NCLA

“OSHA rules should regulate the workplace. This new rule nakedly regulates the worker. There is nothing in the statute or the Constitution that imparts power on OSHA to force companies to fire unvaccinated workers. This is especially true as the drugs are not fully approved by the FDA and the statute authorizing their emergency use requires informed consent of the individual being given the vaccine. ‘Take it or you’re fired’ is not informed consent. It is the practice of medicine without a license by a lawless bureaucracy.”
— John Vecchione, Senior Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document