The mandate will be tested before a court with a majority of Republican appointees.
The legal fight over the Biden administration’s vaccine-or-test mandate will be heard before the 6th Circuit Court of Appeals, after a lottery conducted Tuesday by an obscure federal judicial panel.
Nearly three dozen lawsuits have been filed in multiple federal appeals courts against the requirement, triggering the lottery to consolidate the cases before one court.
The rule, released by the federal Occupational Safety and Health Administration on Nov. 5, requires private businesses with more than 100 employees to ensure that their workers are vaccinated or tested weekly for Covid-19, starting Jan. 4.
The lawsuits — brought by several Republican-controlled states, private businesses and religious groups — argue that the rule exceeds the Labor Department’s authority and Congress’ ability to delegate to federal agencies, as well as the First Amendment, the Constitution’s Commerce clause, and laws protecting religious freedom, among other legal arguments.
The Judicial Panel on Multidistrict Litigation selected the 6th circuit as part of a random selection where each court’s name was entered into a drum.
The New Orleans-based 5th Circuit Court of Appeals issued a stay against the requirement earlier this month, and further instructed the Biden administration to “take no steps to implement or enforce” it, finding that the states and businesses challenging the rule “show a great likelihood of success on the merits.”
The Biden administration will now issue its response to that order in the 6th Circuit. The Cincinnati-based court has 16 judges: 11 appointed by Republican presidents and five by Democratic presidents. Six of the judges were appointed by former President Donald Trump.
However, the three-judge circuit panel that will hear the arguments is unlikely to be the final arbiter, since the losing side can request a rehearing before all the judges in that circuit and request Supreme Court review.
While it’s unclear what specific judges on the panel will hear the consolidated challenge, notably, three judges on the 6th circuit struck down a court order late last year that would have allowed Kentucky religious and private schools to reopen for in-person education amid a surge in coronavirus cases.
The First Liberty Institute, a Texas-based group that takes up court battles on behalf of Christian issues, represented one of the parties in that Kentucky school case and also filed one of the challenges against the OSHA vaccine-or-test rule in the 5th Circuit.
Josh Gerstein contributed to this report.
This blgo originally appeared at Politico on November 16, 2021. Reprinted with permission.
About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter.
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