DOJ asks court to lift order blocking vaccine rules

The Biden administration in a filing late Monday said it has the legal authority to mandate COVID-19 vaccines or tests for larger companies, and that the GOP-led states and businesses challenging the law have not shown their claims will outweigh the harms of stopping the rule.

In a filing to the 5th U.S. Circuit Court of Appeals, which temporarily blocked the mandate with a nationwide stay last week, the Department of Justice (DOJ) said the rule is firmly grounded in law and necessary to keep people safe.

Stopping the mandate from taking effect “would likely cost dozens or even hundreds of lives per day,” the DOJ wrote. “Petitioners’ asserted injuries, by contrast, are speculative and remote and do not outweigh the interest in protecting employees from a dangerous virus while this case proceeds.”

DOJ was responding to the court’s ruling on Saturday, when a panel of three judges issued a stay of the rule, citing “grave statutory and constitutional issues.” All three judges on the panel were appointed by Republican presidents.  

The rule was issued last week by the Department of Labor’s Occupational Safety and Health Administration (OSHA), under its emergency authority. The rule would force companies with at least 100 employees to require unvaccinated employees to wear masks indoors starting Dec. 5 and then undergo weekly testing if they remain unvaccinated by Jan. 4.

Federal law gives OSHA the authority to issue an emergency temporary standard if it determines workers are exposed to a “grave danger” that necessitates a rule. However, the states and private companies argue that COVID-19 is not a “grave danger” specific to the workplace, saying the rule is an unlawful overreach of federal power.  

The DOJ also argues there is no need to address the challenges immediately, because there is a congressionally mandated process for judicial review of OSHA standards. Since the challenges were filed in separate courts, there is going to be a lottery on Nov. 16 to determine which court will hear the lawsuit. 

The DOJ argued the Nov. 16 date means the process will play out well before the first deadline for employees to get vaccinated, meaning there is no possible harm committed at this point, allowing plenty of time for preliminary motions. 

“It would, of course, be improper to fully adjudicate pending petitions before the multi-circuit lottery occurs or the administrative record is filed,” the DOJ wrote. “[C]ourts are not to resolve these challenges conclusively during the ten-day period prior to consolidation.”

The White House on Monday urged businesses to move forward with implementing rules for coronavirus vaccines even as the court battles play out.

“We think people should not wait,” deputy press secretary Karine Jean-Pierre told reporters on Monday. “We say, do not wait to take actions that will keep your workplace safe. It is important and critical to do and waiting to get more people vaccinated will lead to more outbreaks and sickness.”