DOJ asks federal appeals court to lift temporary order blocking Covid-19 vaccine mandate

By Jessica Schneider and Kaitlan Collins, CNN

The Department of Justice argued Monday night against a more permanent block of the Biden administration’s Covid-19 vaccine mandate in a filing to the 5th US Circuit Court of Appeals, saying that Republican-led states and private businesses challenging the mandate have not shown that their claimed injuries “outweigh the harm of [stopping] a Standard that will save thousands of lives and prevent hundreds of thousands of hospitalizations.”

In the filing, the Justice Department said the petitioners’ legal objections lack merit and rejected their claim that the Occupational Safety and Health Administration’s authority to issue this vaccine mandate is an unconstitutional delegation of legislative power. While the states and private businesses seek emergency relief, the department argued, “most of their asserted harms are at least a month off, and many of their claimed harms relate to a testing requirement that does not become effective until January 2022.”

The department’s response comes after the federal appeals court over the weekend temporarily blocked the administration’s new vaccine rules that will apply to private businesses with 100 or more employees, certain health care workers and federal contractors.

The OSHA rule does allow for employees to remain unvaccinated if they choose, but the employees must provide verified negative tests to their employers at least weekly and must wear face masks in the workplace.

The Justice Department is asking the 5th Circuit to lift its administrative stay in order to allow the lawsuit to move forward in the way that has been set by Congress. The 10-day process, the department argued in its filing, would play out well before any employee could be required to receive a vaccine, which petitioners argue would be December 7 to comply with the January 4 deadline.

The White House said earlier Monday that private companies should abide by the new mandate as the court battle plays out.

“We think people should not wait,” deputy press secretary Karine Jean-Pierre told reporters. “Do not wait to take actions that will keep your workplace safe. It is important and critical to do and waiting to get more people vaccinated will lead to more outbreaks and sickness.”

White House aides have said they’re confident the administration will prevail in the matter and has the legal authority to mandate private companies with 100 or more employees to require vaccines or test them weekly.

“The Department of Labor has a responsibility to keep workers safe and the legal authority to do so,” she added.

In a brief order Saturday, a three-judge appellate panel said the petitioners in the case “give cause to believe there are grave statutory and constitutional issues with the Mandate.”

The court said it would expedite the case and did not specify whether its order would have nationwide effect or would only apply to the states under its jurisdiction.

The Biden administration had announced last week that its vaccine rules applying to private businesses with 100 or more employees, certain health care workers and federal contractors will take effect next year. A number of GOP-led states filed court challenges to the rule, and it appears set for an intense legal battle ahead of implementation dates.

The rule creates two deadlines: businesses must require masks and testing for unvaccinated employees starting December 4 and mandate vaccinations or weekly testing by January 4.

This story has been updated with additional developments Monday.

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