The Fifth Circuit Says The Biden Administration Abused Its Power And The Constitution. Better Impeach Him, Then!

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Michael Ejercito

Nov 14, 2021, 11:52:16 PM11/14/21

The Fifth Circuit Says The Biden Administration Abused Its Power And The
Constitution. Better Impeach Him, Then!
Vaccine mandate

Just kidding! Presidents often try to stretch the already rubber
boundaries of what the Constitution and even the law requires, only to
get slapped down by the courts. This kind of thing was only grounds for
impeachment (according to the Trump Deranged, the mainstream media
pundits and Democrats) when Donald Trump did it.

But President Trump never tried anything as egregiously dictatorial as
the vaccine mandate.

Tell us again who is “a threat to democracy.”

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit,
issued a ruling at the end of this week upholding a stay of the mandate
after temporarily halting the mandate last weekend in response to
lawsuits filed by and legal groups. The Washington Post, telegraphing
its bias as usual, calls them “Republican-aligned businesses and legal
groups.” Since the mandate was wildly excessive and pretty clearly
illegal, the question is why “Democratic–aligned” organizations don’t
also oppose it. I guess that’s nor really much of a question.

The Post also emphasizes that the panel consisted of judges appointed by
Reagan or Trump, because in Progressivese, that means the ruling is
partisan. No, it really isn’t. It’s just right, as any fair reading of
the opinion by Judge Kurt D. Engelhardt and joined by Judges Edith H.
Jones and Stuart Kyle Duncan will reveal. Of course, none of your
metaphorically screaming Facebook friends will read it.

You will, though, right? It’s pretty thorough and damning, as well as
bit nasty, which any administration trying something like this deserves.
(It’s better than an impeachment!)


[I]n its fifty-year history, OSHA has issued just ten [Emergency
Temporary Standards]. Six were challenged in court; only one survived.
The reason for the rarity of this form of emergency action is simple:
courts and the Agency have agreed for generations that “[e]xtraordinary
power is delivered to [OSHA] under the emergency provisions of the
Occupational Safety and Health Act,” so “[t]hat power should be
delicately exercised, and only in those emergency situations which
require it.”…

This case concerns OSHA’s most recent ETS—the Agency’s November 5, 2021
Emergency Temporary Standard (the “Mandate”) requiring employees of
covered employers to undergo COVID-19 vaccination or take weekly
COVID-19 tests and wear a mask. An array of petitioners seeks a stay
barring OSHA from enforcing the Mandate during the pendency of judicial
review. On November 6, 2021, we agreed to stay the Mandate pending
briefing and expedited judicial review. Having conducted that expedited
review, we reaffirm our initial stay….

Many of the petitioners are covered private employers within the
geographical boundaries of this circuit.5 Their standing6 to sue is
obvious—the Mandate imposes a financial burden upon them by deputizing
their participation in OSHA’s regulatory scheme, exposes them to severe
financial risk if they refuse or fail to comply, and threatens to
decimate their workforces (and business prospects) by forcing unwilling
employees to take their shots, take their tests, or hit the road….

The “traditional stay factors . . . govern a request for a stay pending
judicial review.” Nken v. Holder, 556 U.S. 418, 426 (2009). Under the
traditional stay standard, a court considers four factors: “(1) whether
the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and
(4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770,
776 (1987).

Each of these factors favors a stay here….

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…

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….

…the Mandate at issue here is anything but a “delicate[] exercise[]” of
this “extraordinary power.” 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…

…OSHA is required to make findings of exposure—or at least the presence
of COVID-19—in all covered workplaces. Of course, OSHA cannot possibly
show that every workplace covered by the Mandate currently has
COVID-positive employees, or that every industry covered by the Mandate
has had or will have “outbreaks.”…

Equally problematic, however, is that it remains unclear that
COVID-19—however tragic and devastating the pandemic has been—poses the
kind of grave danger § 655(c)(1) contemplates….For starters, the Mandate
itself concedes that the effects of COVID-19 may range from “mild” to
“critical.” As important, however, the status of the spread of the virus
has varied since the President announced the general parameters of the
Mandate in September. (And of course, this all assumes that COVID-19
poses any significant danger to workers to begin with; for the more than
seventy-eight percent16 of Americans aged 12 and older either fully or
partially inoculated against it, the virus poses—the Administration
assures us—little risk at all.)…

….the Mandate makes no serious attempt to explain why OSHA and the
President himself were against vaccine mandates before they were for one

That last, a deliberate jibe at John Kerry, signals the panel’s general
level of annoyance, and it is well deserved. The mandate will eventually
be ruled on by the Supreme Court after one of the more liberal Circuits
rules differently, or perhaps sooner than that. This opinion signals to
all but those in Progressiveland that believe in unicorns and Hobbits
that the thing is doomed. Good.

The angry proto-totalitarians will argue, indeed are arguing, that the
mandate is justified because it will speed the decline of the Wuhan
virus threat. It probably will. They just don’t get it. Our values and
system hold that the ends don’t justify the means when the means is the
government infringing on basic human rights and liberties. The now
totalitarianism-tending Left doesn’t like that about the Constitution or
the United States.

As an ethicist, I don’t like that slippery slope. It goes from
vaccinations, to mandated masks in the workplace, to mandated masks
everywhere, to mandated speech supporting climate change edicts and
“diversity.” Masks or no masks, we can recognize these people for what
they are.

This email has been checked for viruses by AVG.

HeartDoc Andrew

Nov 15, 2021, 7:06:41 AM11/15/21
MichaelE wrote:

>The Fifth Circuit Says The Biden Administration Abused Its Power And The
>Constitution. Better Impeach Him, Then!
>Vaccine mandate
>Just kidding! Presidents often try to stretch the already rubber
>boundaries of what the Constitution and even the law requires, only to
>get slapped down by the courts. This kind of thing was only grounds for
>impeachment (according to the Trump Deranged, the mainstream media
>pundits and Democrats) when Donald Trump did it.
>But President Trump never tried anything as egregiously dictatorial as
>the vaccine mandate.

Actually, if it were true that vaccine mandates were dictatorial, Mr.
Jack Marshal would have named dictators like Stalin, Hitler, etc
issuing such mandates. He can't because the realm of public health is
about compassion for society's vulnerable and dictators lack such
compassion for others b/c they're attracted to only having power for
themselves and see compassion for others as only weakness.

Bottom line:
Mr. Jack Marshal is an unethical liar. May GOD continue to kill folks
like anti-vaxxer anti-masker (i.e. disease spreading evil-doer) Mr.
Marshall with COVID-19 in order to continue to convince others to not
be like them, in the name (John 16:23) of LORD Jesus Christ of
Nazareth. Amen.

"It will continue to be done as you've asked." -- Holy Spirit
(referring to John 16:23)

"In that day you will no longer ask Me anything. Very truly I tell
you, My Father will give you **whatever** you ask in My name." (John
16:23 w/ added **emphasis**)


Laus DEO.

The only *healthy* way to stop the pandemic, thereby saving lives, in
the U.S. & elsewhere is by rapidly ( )
finding out at any given moment, including even while on-line, who
among us are unwittingly contagious (i.e pre-symptomatic or
asymptomatic) in order to (John
15:12) for them to call their doctor and self-quarantine per their
doctor in hopes of stopping this pandemic. Thus, we're hoping for the
best while preparing for the worse-case scenario of the Alpha lineage
mutations and others like the Gamma, Beta, Epsilon, Iota, Lambda, Mu &
Delta lineage mutations combining to form hybrids that render current
COVID vaccines/pills no longer effective.

Indeed, I am wonderfully hungry ( )
and hope you, Michael, also have a healthy appetite too.

So how are you ?

...because we mindfully choose to openly care with our heart,

HeartDoc Andrew <><
Andrew B. Chung, MD/PhD
Cardiologist with an
2024 & upwards non-partisan candidate for U.S. President:
and author of the 2PD-OMER Approach:
which is the only **healthy** cure for the U.S. healthcare crisis

Michael Ejercito

Nov 15, 2021, 11:00:17 AM11/15/21
I am wonderfully hungry!


HeartDoc Andrew

Nov 15, 2021, 12:06:57 PM11/15/21
MichaelE wrote:
While wonderfully hungry in the Holy Spirit, Who causes (Deuteronomy
8:3) us to hunger, I note that you, Michael, not only don't have
COVID-19 but are rapture (Luke 17:37) ready and pray (2 Chronicles
7:14) that our Everlasting (Isaiah 9:6) Father in Heaven continues to
give us "much more" (Luke 11:13) Holy Spirit (Galatians 5:22-23) so
that we'd have much more of His Help to always say/write that we're
"wonderfully hungry" in **all** ways including especially caring to (John 15:12 as shown by ) with all glory ( ) to GOD (aka HaShem, Elohim, Abba, DEO), in
the name (John 16:23) of LORD Jesus Christ of Nazareth. Amen.

Laus DEO !

Suggested further reading:

Shorter link:

Be hungrier, which really is wonderfully healthier especially for
diabetics and other heart disease patients: (Luke 6:21a) with all
glory ( ) to GOD, Who causes us to
hunger (Deuteronomy 8:3) when He blesses us right now (Luke 6:21a)
thereby removing the from around the heart

Michael Ejercito

Nov 16, 2021, 10:43:15 AM11/16/21
Thank you for noting that I do not have COVID-19.

Jack Marshall replied.

"Now there’s a nice, rational, substantive argument. Why do you
waste time with such people? Your sock drawer must be a mess!"- Jack

Perhaps you can leave a comment there.

HeartDoc Andrew

Nov 16, 2021, 10:57:50 AM11/16/21
Laus DEO ( )

> Jack Marshall replied.
> "Now there’s a nice, rational, substantive argument. Why do you
>waste time with such people? Your sock drawer must be a mess!"- Jack

To pray is to not argue.

Sarcasm is facetiousness that is c/w Mr. Marshall being an "unethical

> Perhaps you can leave a comment there.

The full glory of GOD is revealed here in a forum such as USENET which
is un-moderated **and** permanently archived for open eternal access.

Laus DEO ( )

So let us not be a (Genesis 25:32)
Drumpf ( ) or else we'll most certainly die a (Mark 9:42) death:
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