Challenges to President Joe Biden's COVID-19 vaccine mandate for private employers will be consolidated in the U.S. 6th Circuit Court of Appeals, a panel dominated by judges appointed by Republicans.
The Cincinnati-based court was selected Tuesday in a random drawing using ping-pong balls, a process employed when challenges to certain federal agency actions are filed in multiple courts.
The selection could be good news for those challenging the administration's vaccine requirement, which includes officials in 27 Republican-led states, employers and several conservative and business organizations. They argue the U.S. Occupational Safety and Health Administration does not have the authority to impose the mandate.
The challenges, along with some from unions that said the vaccine mandate didn't go far enough, were made this month in 12 circuit courts. Under an arcane system, it was up to the clerk of the Judicial Panel on Multidistrict litigation to select a ping-pong ball from a bin to choose where the cases would be heard.
It was a favorable outcome for Republicans. Eleven of the 16 full-time judges in the 6th Circuit, which sits in the Potter Stewart Federal Courthouse in downtown Cincinnati, were appointed by Republican presidents. Accounting for one of the Republican-appointed judges, Helene White, who often sides with judges appointed by Democrats and adding senior judges who are semi-retired but still hear cases, the split is 19-9 in favor of Republicans.
Six of the 6th Circuit's full-time judges were appointed by former President Donald Trump. One Trump appointee to the 6th Circuit, Amul Thapar, was one of those in the running when Trump named a replacement for U.S. Supreme Court Justice Anthony Kennedy. Judge Raymond Kethledge, a George W. Bush appointee to the 6th Circuit, also was under consideration for the nomination that went to Justice Brett Kavanaugh.
The 6th Circuit covers Ohio, Kentucky, Michigan and Tennessee.
Another court where a majority of judges were nominated by Republicans, the New Orleans-based 5th Circuit Court of Appeals, issued a ruling that put the mandate on hold.
It's not clear whether the court that will hear the case will act as the 5th Circuit did and side quickly with the Republican challengers. But legal experts have become increasingly concerned in recent years about the politicization of both federal and state courts, raising questions about whether justice is fairly administered or dispensed through a partisan lens.
Allison Orr Larsen, a professor at William & Mary Law School, coauthored a study published this year that found growing partisanship in federal judicial decisions. For decades, the study found that rulings on cases in which all judges in a circuit weighed in generally were not decided along party lines based on the presidents who appointed the judges.
“We did see a concerning spike starting in 2018 that led us to wring our hands,” Larsen said in an interview.
The increasing partisanship in a branch of government that is supposed to be blind to partisan politics was seen in judges appointed by presidents of both parties, but Larsen said it's not clear why that was or whether it will last.
Some of the federal courts moved to the right when Donald Trump was president and Republicans controlled the U.S. Senate, which confirms judicial nominees. Trump appointed 54 judges to the circuit courts, which are one step below the U.S. Supreme Court, including filling one seat twice. That represents nearly 30% of the seats on the circuit courts, where cases are most often considered by three-judge panels.
Trump's appointees flipped the 11th Circuit in the South to Republican control and expanded the GOP-appointed majorities in the 5th, 6th and 8th Circuits in the Midwest and South. Biden's three appointees switched the New York-based 2nd Circuit to Democratic control.
Republican state attorneys general and conservative groups mostly filed their challenges in circuit courts dominated by conservative judges, while the unions went to circuits with more judges nominated by Democratic presidents.
In all, 34 objections have been filed in all 11 regional circuits plus the one for the District of Columbia. That’s where the ping-pong balls came in to play.
How the cases ended up in Cincinnati
Under federal law, cases challenging federal agency actions get consolidated upon the agency's request if they are filed in multiple circuit courts. Each circuit where a challenge is filed within the first 10 days of the agency taking action has an equal chance of being selected.
It was up to the judicial panel's clerk, John W. Nichols, to select a ping-pong ball from a bin, according to a Tuesday court filing by the panel. The office denied a request by The Associated Press to allow media access to the drawing.
Previously this year, the lottery had been used to assign just two cases. One involved fallout from a National Labor Relations Board ruling on an anti-union Twitter message by Tesla founder Elon Musk where objectors filed in two circuits. The other was over orders from the Federal Energy Regulatory Commission in which objectors filed in three.
The employer vaccine mandate is higher profile and further reaching. It calls for businesses with more than 100 workers to require employees to be vaccinated by Jan. 4 or wear masks and be tested weekly for COVID-19. Exemptions are provided for religious reasons and for those who work at home or only outdoors.
Because it's an unusual rule from the workplace safety agency, there is no consensus among lawyers on how the challenges will go. OSHA has issued just 10 emergency rules in the half century since it was formed. Of the six challenged in court, only one survived intact.
The Biden administration has insisted it’s on strong legal footing. It also has the backing of the American Medical Association, which filed papers in support of the mandate.
“The AMA’s extensive review of the medical literature demonstrates that COVID-19 vaccines authorized or approved by FDA are safe and effective, and the widespread use of those vaccines is the best way to keep COVID-19 from spreading within workplaces,” the group said in its filing.
Among those challenging the rule is a consortium of construction contractors. They say they want their workers vaccinated, but that a requirement only on larger companies is just pushing vaccine-hesitant workers to take jobs with companies that have fewer than 100 employees.
“Crafting an unworkable rule that will do little to get construction workers vaccinated is an approach that is not only wrong, but likely counterproductive,” said Scott Casabona, president of Signatory Wall and Ceiling Contractors Alliance.
Officials with the workplace safety agency say they’re considering extending the mandate to smaller employers.
A three-judge panel of the 5th Circuit extended the stay of the OSHA rule in an opinion released last Friday, expressing skepticism that the agency had authority to implement the vaccine requirement. The 6th Circuit could modify, revoke or extend the stay.
It had not yet been determined which judges from the 6th Circuit will be on a three-judge panel to hear the case or whether it will be considered by all the judges.
The U.S. Department of Justice declined to comment on the selection of the court.
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