A federal appeals court’s temporary blockage of a Biden administration federal vaccine mandate bears all the hallmarks of a judiciary deeply influenced by former President Donald Trump’s four years in office.
The 5th Circuit Court of Appeals covering Louisiana, Mississippi, and Texas froze an attempt by President Joe Biden’s administration to require workers at U.S. companies with at least 100 employees to be vaccinated against COVID-19 or tested weekly. The judges cited “grave statutory and constitutional” concerns with the rule issued Saturday.
Judges who issued the stay include Stuart Kyle Duncan and Kurt Damian Engelhardt, both Trump appointees, as well as Edith Hollan Jones, nominated by former President Ronald Reagan and confirmed by the Senate. The pair of Trump-named justices playing a key role in one of the most divisive and controversial issues of the past couple of years — vaccine mandates relating to the COVID-19 pandemic — reflects the concerted influence Trump made on the federal judiciary during his term.
Trump left the presidency on Jan. 20 having appointed more than 200 judges to the federal bench. That includes 54 federal appellate judges, a step below the Supreme Court. That’s one short of the 55 judges Democratic President Barack Obama appointed over his eight years in office. On the 5th Circuit alone, Trump nominated six of the 17 sitting judges, more than a third.
Overall, Trump nominated 226 federal judges confirmed by the Senate. Most prominent among them are Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Judicial confirmations were a high priority for the Trump administration for then-Majority Leader Mitch McConnell. With the Trump White House working in tandem with the Kentucky Republican, the federal judiciary took a noticeable turn to the right, as reflected in the 5th Circuit’s vaccine mandate ruling last weekend.
More than two dozen Republican-led states filed challenges to the vaccine mandate after the White House announced the Occupational Safety and Health Administration rule, put forth as an “emergency temporary standard” to go into effect Jan. 4, 2022. A case filed by a group of employers was backed by Texas Attorney General Ken Paxton and likely chose the 5th Circuit due to its relatively conservative orientation.
While the highest court has yet to weigh in on any sweeping matters related to the federal vaccine push, justices repeatedly struck down pandemic restrictions for religious worship with a 5-4 vote.
The 5th Circuit gave the White House until 5 p.m. on Monday to respond to the lawsuit’s request for a permanent injunction, to which White House Deputy press secretary Karine Jean-Pierre said businesses should move forward with the vaccine and testing requirements. The Justice Department asked the court to lift the pause Monday evening, arguing private businesses challenging the rule have not shown injuries “outweigh the harm of [stopping] a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”
BIDEN’S VACCINE MANDATE TEMPORARILY HALTED BY FEDERAL COURT
The state petitions filed so far against the OSHA rule have landed in the 5th, 6th, 8th, and 11th U.S. Circuit Courts of Appeals, each with majorities of Republican-appointed judges. Proponents of the OSHA rule are expected to file in circuits with more Democratic-appointed judges, including the 1st, 2nd, 4th, and 10th. Both the 9th and D.C. Circuit are contested evenly.
The so-called circuit lottery was created by Congress in 1988, establishing a rule that selects venues based on who filed lawsuits first. The Judicial Panel on Multidistrict Litigation manages the lottery process, with rules to select the court “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Challengers to the rule have a 10-day window to file their petition to be included in the lottery.
But with a swath of Trump-appointed judges in various circuits with more conservative orientations, chances are higher for a ruling against the Biden administration rules.
Historical precedent has shown challenges to OSHA emergency temporary standards have been successful, as OSHA has lost five of six challenges in the past. The 5th Circuit previously blocked four. Regardless of how justices rule on the case in the lower courts, the losing party will likely take their challenge to the Supreme Court.
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In October, the highest court declined to weigh in favor of a case regarding a vaccine mandate in Maine for healthcare workers but did not explain its action. However, Justices Clarence Thomas, Samuel Alito, and Gorsuch dissented in the 6-3 decision, with the Trump-appointee writing he would have agreed to the healthcare workers’ request.
