Monday | November 15th, 2021

John Bickley and Georgia HoweNovember 15, 2021

It’s Monday, November 15th, and this is your Morning Wire. Listen to the full podcast:

1) U.S. Court of Appeals Blocks Biden Vaccine Mandate

The Topline: A U.S. Court of Appeals has blocked the Biden Administration’s vaccine mandate for employers with 100 or more employees, calling it “fatally flawed.”

Quote Of The Day: “For the time being, the mandate is dead in the water. The administration has to try to convince the court that the stay needs to be lifted. And based on the court’s opinions in this order, that’s going to be a heavy lift.”

– Daily Wire general counsel Josh Herr

Drew Angerer/Staff/Getty Images

The Mandate

On Friday, the 5th Circuit Court of Appeals dealt a major blow to the Biden administration’s vaccine mandate for all employers with 100 or more employees. The order, issued by OSHA, forces companies to mandate vaccines or implement frequent testing for employees, and would impact some 85 million Americans. But the court says it cannot move forward, calling the rule a “staggering overreach.” The court’s decision follows several states and companies, including The Daily Wire, filing lawsuits in multiple districts.

The Ruling

Daily Wire general counsel Josh Herr told Morning Wire this is a fairly significant victory for the businesses that were at risk of being fined potentially millions of dollars a week if they refused to fire employees who didn’t share their personal medical information with their employer.

The court said the rule is likely unconstitutional, and ruled the Occupational Safety and Health Act, which created OSHA, was not intended to make sweeping pronouncements of public health affecting every member of society.

The court also said even if Congress wanted to, it probably could not implement a mandate like this because it doesn’t have the power to do so under the Constitution’s commerce clause.

It ruled that even on its own terms, the mandate was staggeringly, overbroad, arbitrary, and capricious.

The ruling also said that the mandate flunks a cost benefit test and violates the constitutional structure that safeguards collective Liberty, calling the mandate a rare government pronouncement that is both overinclusive and under inclusive.