Attorney Andrew Lieb joins The National Report Court on Newsmax TV to debate a recent court ruling in which a federal judge rejected Texas' bid to stop federal agents from cutting razor wire that Texas had installed along the U.S.-Mexico border. Andrew Lieb debates whether Texas has the legal authority to sue the federal government over its border security policies by citing the need for sovereign immunity in order for the US Government to function.

On November 6, 2021, the 5th Circuit Court of Appeals stayed the OSHA Vaccine Emergency Temporary Standard (which we explained in this blog). However, the Circuit set a short briefing schedule and required the Government to respond to petitioners' motion for a permanent injunction by 5:00 PM on November 8th, which they did, and the petitioners to reply by 5:00 PM on November 9th, which they did. 

However, the stay seems to be a splashy headline about absolutely nothing. Specifically, the Emergency Temporary Standard's compliance date is not until January 4, 2022 and it impossible that the legality of the Emergency Temporary Standard is not determined before then. More so, as the Government points out, in great detail within their response, this case will be in Multidstrict Litigation "on or about November 16—21 days before the December 7 date that petitioners allege is the earliest date that any employee could be required to receive a vaccine and 51 days before petitioners’ employees would be required to start testing." Here, the 5th Circuit choosing to go it alone, is really strange. 

Regardless, the ultimate determination in this case will likely involve a ruling as to whether the United States Code (29 USC 655(c)), permitted OSHA to issue the vaccine Emergency Temporary Standard. The applicable Code section reads:

OSHA shall provide, without regard to the requirements

of chapter 5, title 5, United States Code [5 USCS §§ 500

et seq.], for an emergency temporary standard to take

immediate effect upon publication in the Federal Register

if he determines (A) that employees are exposed to grave

danger from exposure to substances or agents determined

to be toxic or physically harmful or from new hazards, and

(B) that such emergency standard is necessary to protect

employees from such danger.

Stated otherwise, the question before the Multidistrict Court is going to be whether OSHA has power to issue the Standard. To get to that answer, it is helpful to understand that a grave danger means one that causes "incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health," according to precedent. 

Now, to make matters even more interesting, even if OSHA loses on this Emergency Temporary Standard before the Multidistrict Court, it can nonetheless issue a vaccine requirement through traditional rulemaking so long as such a requirement is "'reasonably necessary or appropriate' to address a 'significant risk' of harm in the workplace." As you can see, we are just in the starting gate and this horse race hasn't yet even started. Stay tuned. 

Before the US Supreme Court on Monday, November 1, 2021, is Texas's abortion law, which seems to be about stopping abortions by changing the standard from viability, as is the current law under Roe v. Wade, to 6 weeks into pregnancy, but it's about so much more and you should really care. 

The law deputizes Texans to police their neighbors in a way that should ring out fears that we are transitioning into a dystopian society like a real-world Handmaid's Tale. 

Imagine for a second, if you can, that this law has nothing to do with abortions (regardless, if you are pro-life or pro-choice) and ask yourself, how do you feel about your neighbors receiving $10,000 for catching you speeding on the highway, or shoplifting, or putting an extension on your house without a permit. In Texas, if you catch someone violating the 6-week abortion rule, you can get paid $10,000. Crazy. 

Ironically, Texas's law has survived scrutiny under Roe v. Wade because of this unique enforcement scheme. In fact, the US Supreme Court previously denied an application for injunctive relief, on September 1, 2021, by explaining that there was no "private-citizen respondent before us [who had] intention to enforce the law" [they sued the government rather than a citizen enforcing the law to get $10,000] and therefore, the Court ruled that there was a procedural hurdle preventing it from making "any conclusion about the constitutionality of Texas's law" when it comes to abortions. 

Now, on November 1, 2021, the Court will hear arguments as to whether the "United States [may] bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit SB. 8 from being enforced." If they can stop a judge from granting the $10,000, they stop the law. 

Everywhere you look, the media is saying TX isn't permitting employer vaccine mandates, but that is NOT what is happening. To be clear, vaccine mandates are still permissible in TX. 

You can read Governor Abbott's Executive Order GA-40 here. 

As you can clearly see, all the Order prohibits are vaccine mandates that do not provide a mechanism for those who object to the "vaccination for any reason of personal conscience, based on religious belief, or for medical reasons, including prior recovery from COVID-19." 

This is almost entirely consistent with existing law and how, just about, every court case is shaking out with respect to vaccine mandates, with a few minor wrinkles that can't be ignored. The two wrinkles in the Order are:

1. Not utilizing the term "sincerely held" prior to "religious beliefs," which thereby seems to expand the standard in protecting religion, which doesn't appear legally problematic; and, 
2. Misstating the disability / handicap prong. 
• Under existing disability / handicap law, an accommodation is never available just because the existence of a disability / handicap renders the policy (i.e., vaccination) unnecessary, which appears to be the intention of the wording where it states, "including prior recovery from COVID-19." 
• Instead, under existing law, an accommodation is only available where a disability or handicap requires an accommodation for equality to exist. Stated otherwise, one needs a qualifying disability to receive an accommodation in the first instance, without it, there is nothing to accommodate. 
• To be clear, under existing law, having had recovered from COVID-19 is NOT a disability that is recognized. We wonder how this aspect of the Order will shake out and more so, how the Supremacy Clause will shake out if / when the Federal Government responds.  

Do you see the distinction? Does the distinction matter?