OSHA Seeks An Immediate End To The Fifth Circuit Stay, Overnight -- In Cincy (Sixth Circuit)...

Overnight, the Biden administration sought an immediate lifting of the stay improvidently granted in the Fifth Circuit.

The Biden team has -- by far the better of the argument -- on the actual federal law, spanning four decades, minimum, thus:

. . .Over 750,000 are now dead. . . .

[True,] holding all other risk factors constant, a “28-year-old” may be “less vulnerable” than a “62-year-old,” [Fifth Cir.] slip op. 13, [but] that observation does not take account of how the Standard operates. Even if some individual employees are unlikely to suffer severe health consequences if infected, OSHA adopted the Standard in part to prevent employees from transmitting the virus to other employees -- a risk that is not age dependent. . . .

“The equities relied on” by the Fifth Circuit “do not balance the same way” in this “context.” Trump, 137 S. Ct. at 2088. The court stressed that the Standard “threatens to substantially burden” individuals’ “liberty interests.” Slip op. 18-19. And while the court’s discussion of the public interest made no mention of the thousands of lives at stake, the court tied the “public interest” to the asserted risk that the Standard may infringe on “liberty.” Id. at 20. But the shield for employers who wish to implement workplace safety rules protects, rather than restricts, liberty. It ensures that employers (of all sizes) can run their businesses as they see fit and protect their employees from a particularly acute workplace danger. . . .

The State petitioners have contended they are harmed by the Standard’s preemptive effect. But where the “maintenance” of employers’ “choice” is a “significant federal regulatory objective,” that policy governs. Williamson, 562 U.S. at 330. Myriad federal laws regulate private parties and address subjects that are also addressed by state or local laws. The Supremacy Clause provides a “rule of decision” about how to reconcile any conflicting commands. Murphy v. National Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018). The fact that employers may choose the best protections for their own workplaces during the pendency of this case is not the kind of concrete and significant injury that warrants “an extraordinary remedy.” Winter, 555 U.S. at 22; cf. Murphy, 138 S. Ct. at 1481 (“[E]very form of preemption is based on a federal law that regulates the conduct of private actors.”).

It would also be particularly anomalous to invoke any asserted “intrusion” on state or local regulation to justify enjoining the operation of federal regulation. Some intrusion on a sovereign’s choices is on both sides of the balance. The Supremacy Clause establishes which interest takes precedence. Cf. United States v. California, 921 F.3d 865, 893 (9th Cir. 2019) (describing the manifest interest in “preventing a violation of the Supremacy Clause”), cert. denied, 141 S. Ct. 124 (2020). And a court order blocking the Standard is a far greater affront to sovereign prerogatives. Such an order would also threaten deaths and hospitalizations that employers wish to prevent. Those interests, and the government’s interests in protecting employees and employers while this case proceeds, vastly outweigh petitioners’ asserted harm. . . .

We shall see -- but the Sixth Circuit ought to hear this in plenty of time to decide the matter before it takes full effect in January. Onward, ever onward -- when you know better, you do. . . better. Smile. . . .

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