Courts

Sixth Circuit Brutally Roasts Fifth Circuit So Bad It Should Be An OSHA Violation

In fairness, the Fifth Circuit did this to itself.

By  
on

FireThe Fifth Circuit’s effort to shut down Biden’s OSHA-administered employer vaccine provision got nixed by the Sixth Circuit. It’s newsworthy as the country prepares to face another holiday spike of the pandemic, but for Above the Law readers, the real action was in footnote one, where Judge Stranch, writing for the Sixth Circuit, dunked on the Fifth Circuit so hard she broke the backboard.

The key to this roasting is, as always, the hubris of the roasted.

Channeling some simulacrum of Antonin Scalia, the Fifth Circuit stay tried to be witty with some sanctimonious wordplay. “But health agencies do not make housing policy, and occupational safety administrators do not make health policy.”

I’m sure that line sounded cool in the head of whichever dunderheaded judge pitched its inclusion. Because while Judge Englehardt wrote the line, Jones and Duncan were on that panel too and are equally plausible candidates for suggesting a mic drop line that would — in due course — land as an anvil on the three of them. And Judge Duncan felt the need to write a concurrence saying that he supported the decision because, he felt, Congress would need to have given some indication as to the purpose of the entity to justify the rule.

Over at the Sixth Circuit, Judge Stranch addressed this cracker jack legal analysis in a footnote, opting to play the role of the Road Runner — merely standing out of the way as the Fifth Circuit ran itself over the cliff.

In comparing this case with Alabama Association, the Fifth Circuit wrote, “But health agencies do not make housing policy, and occupational safety administrators do not make health policy.” BST Holdings, 17 F.4th at 619.

Mmhmm…

Sponsored

The Fifth Circuit fails to acknowledge that OSHA stands for the Occupational Safety and Health Administration. See 29 U.S.C. § 651(b) (“The Congress declares it to be its purpose and policy . . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . . .” (emphasis added)).

It’s IN THE NAME. OF THE DEFENDANT. CHECK THE CAPTION.

As noted on Twitter: The United States Court of Appeals for the Fifth Circuit: If you don’t laugh, you’ll cry.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Sponsored

Topics

, , , ,