The legal battle over President Joe Biden’s federal vaccine-or-test mandate will be heard before the 6th U.S. Circuit Court of Appeals following a lottery drawing by a federal judicial panel.
The rule was released by the federal Occupational Safety and Health Administration on Nov. 5 and requires private businesses with more than 100 employees to ensure workers are either vaccinated or tested weekly for COVID-19, beginning Jan. 4. The random selection of the 6th Circuit could mean good news for challengers to the mandate, as 11 of the 16 full-time judges at the appellate court were appointed by Republican presidents.
More than two dozen lawsuits against the requirement have been filed by various business owners and Republican-led states across several federal appeals courts, prompting the Judicial Panel on Multidistrict Litigation on Tuesday to select the 6th Circuit randomly after each court’s name was entered into a drum. The 5th U.S. Circuit Court of Appeals was the first to act on the litigation filings earlier this month and recently ruled to uphold its stay of the mandate on Nov. 12.
Opponents of the mandate claim the enforcement by OSHA is an overreach and an “unconstitutional abuse of authority,” according to Texas Gov. Greg Abbott, who supported the lawsuits. Attorneys for the Justice Department and Labor Department have vowed to defend against the lawsuits and claim that without the rule, it will “cost dozens or even hundreds of lives per day.”
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The Biden administration is poised to issue a response now that the 6th Circuit has been chosen to hear the case. Six of the 16 full-time judges were appointees of former President Donald Trump.
A three-judge panel will hear the arguments, though it is unclear which judges will hear the consolidated challenge. Regardless, the legal battle will likely not end in the 6th Circuit because the losing side is entitled to request a hearing before all the judges in the circuit and can request a Supreme Court review.
Three judges on the 6th Circuit notably struck down a court order last year that would have allowed Kentucky-based religious and private schools to reopen for in-person learning during a surge in COVID-19 cases.
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Judges on the panel will consider whether the vaccine-or-test rule stands as an unconstitutional mandate or an enforceable component of safety standards in large workplaces.
