Power Issues? OSHA Suspends ETS after Fifth Circuit’s Stay

In a rather pithy (and entertaining) opinion by the Fifth Circuit Court of Appeals, Judge Engelhardt outlined the traditional four factors in granting a stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) regarding COVID-19’s vaccine mandate for private employers with a minimum of 100 employees.

If you want to refresh your knowledge about OSHA’s ETS, review our blog post.

Today’s blog won’t rehash the opinion; it’s a good one to read if you typically shy away from legal reading. Today we will review the vaccine mandate’s timeline and define two power issues called out in the opinion: the Commerce Clause and the Nondelegation Doctrine.


  • November 5, 2021: OSHA and the Centers for Medicare & Medicaid Services (CMS) released separate, Interim Final Rules (IFRs) requiring private employers with a minimum of 100 employees to ensure their workforce is COVID-19 vaccinated (or if unvaccinated, produce a negative test weekly) by January 4, 2022.
  • November 12, 2021: the Fifth Circuit Court of Appeals stayed OSHA’s ETS.
  • November 17, 2021: OSHA suspended enforcement of the ETS.

The Sixth Circuit Court of Appeals now gets the pleasure of ironing out the mandate’s legal challenges. OSHA’s suspension does not affect President Biden’s order governing federal contractors, or the IFR by CMS applicable to certain health care provider recipients of federal funding.

The Commerce Clause

“Noneconomic activity” is not subject to the Commerce Clause; this constitutional clause contemplates to what degree the federal government may regulate economic activity (i.e. commerce) among the States. If the regulated activity is not “economic” in nature – say, the choice whether to vaccinate – then regulation of that activity is within each State’s “police power” to regulate.

The Nondelegation Doctrine

The Nondelegation Doctrine boils down to this: Congress, as the law-making body of the country, cannot “delegate” this power to create law to an administrative agency. Though OSHA regulates workplace safety as part of their administrative agency role, unless Congress “speaks clearly” in assigning an agency decision making power, that agency cannot “make law” with broad-sweeping consequences. There are checks and balances within the U.S. legal system; permitting OSHA to create a law regulating noneconomic activity applicable to private employers across the country is an imbalance.

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