The Biden administration is asking the 6th US Circuit Court of Appeals to wipe away an order from another appeals court blocking its Occupational Safety and Health Administration vaccine mandate.
Several lawsuits were brought challenging the OSHA mandate, and last week the cases were consolidated in the 6th Circuit, an appeals court that leans right, as 10 of its 16 active judges are Republican appointees.
But, before the cases were consolidated, the 5th US Circuit Court of Appeals – perhaps the most conservative appeals court in the country – issued its order blocking the mandate.
In its filing overnight Tuesday, the Biden administration said the 5th Circuit erred in how its interpretation of the Occupational Safety and Health Act limited the law’s reach, while also arguing that the 5th Circuit had not taken into proper account the public health interest in letting the mandate go into effect.
“Simply put, delaying the Standard would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous expenses,” the administration said in the new filing. “That is a confluence of harms of the highest order.”
The OHSA policy, which was formally unveiled earlier this month, mandates that companies with 100 or more employees require that employees are either vaccinated or wear facing coverings while undergoing regular Covid-19 testing.
The administration told the 6th Circuit that if it does not lift the order blocking the mandate, it should at least modify the 5th Circuit order “so that the masking-and-testing requirement can remain in effect during the pendency of this litigation.”
The latest request from the Biden administration comes after several of the parties challenging the mandate asked for the case to be put directly in front of the full 6th Circuit Court. Typically, such cases are first heard by a three-judge appellate panel, where, in theory, the Biden administration could draw a panel that is made up of a majority of Democratic appointees who are sympathetic to its arguments. So, skipping that step and sending the case to the full, right-leaning would increase the odds that the challengers would get a ruling in their favor.