Too Important Not To Share
Here are select quotes from the opinion entered by the Honorable Kurt D. Engelhardt, an American who proves that there are still good people in positions of authority in our great nation:
“The Mandate is staggeringly overbroad. Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28 year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus. The list goes on, but one constant remains – the Mandate fails almost completely to address, or even respond to, much of this reality and common sense.“ – Page 13
A good judge that understands natural immunity, situational context, and relies on common sense…what a novel concept. Way to go Judge Engelhardt!
“We begin by stating the obvious. The Occupational Safety and Health Act, which created OSHA, was enacted by Congress to assure Americans “safe and healthful working conditions and to preserve our human resources.” See 29 U.S.C. § 651 (statement of findings and declaration of purpose and policy). It was not-and likely could not be, under the Commerce Clause and nondelegation doctrine-intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways. Cf. Ala. Ass’n of Realtors v. H.H.S., 141 S. Ct. 2485, 2488-90 (2021) (per curiam).
On the dubious assumption that the Mandate does pass constitutional muster-which, we need not decide today – it is nonetheless fatally flawed on its own terms. Indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus – a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to – is unavailing as well. And its promulgation grossly exceeds OSHA’s statutory authority.“ – Page 6
“But the Mandate at issue here is anything but a “delicate[] exercise[] “of this “extraordinary power.” Cf. Pub. Citizen, 702 F.2d at 1155. Quite the opposite, rather than a delicately handled scalpel, the Mandate is a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.” – Page 8
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