But Judge Joan L. Larsen, a Trump appointee, dissented, arguing — as had the Fifth Circuit panel before her — that the agency had exceeded its legal authority.
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“The mandate is aimed directly at protecting the unvaccinated from their own choices,” Judge Larsen wrote. “Vaccines are freely available, and unvaccinated people may choose to protect themselves at any time. And because the secretary likely lacks congressional authority to force them to protect themselves, the remaining stay factors cannot tip the balance.”
All of the judges on the Fifth Circuit panel that had blocked the rule were conservative Republican appointees.
Challengers to the decision could appeal directly to the Supreme Court, which is controlled by a conservative bloc of six Republican appointees. (The Supreme Court this month refused to block New York’s requirement that health care workers be vaccinated against the coronavirus even when they cite religious objections.)
Challengers could also appeal to the full U.S. Court of Appeals for the Sixth Circuit. Of its 16 sitting judges, five were appointed by Democrats and 11 were appointed by Republicans. (However, one of the Republican appointees, Judge Helene N. White, was originally a nominee of a Democratic president, Bill Clinton, before being renominated by a Republican one, George W. Bush, as part of a political deal.)
Conditions on the ground are rapidly changing, with new cases surging, apparently because of the more-infectious Omicron variant. The Justice Department last month warned that keeping the mandate from coming into effect “would likely cost dozens or even hundreds of lives per day, in addition to large numbers of hospitalizations, other serious health effects and tremendous costs.”
The OSHA rule, alongside a separate requirement for federal contractors, has helped drive a number of large companies to announce a form of vaccine mandate, including Procter & Gamble, IBM and American Airlines. Others, like Tyson Foods and Google, introduced mandates on their own, in the face of the rising risk of the Delta variant.