FIVE FREEDOMS: The Fifth Circuit’s Temporary Injunction Halting OSHA’s Vaccine Mandate [EXPLAINED]

Deana Pollard Sacks

The American public is largely perplexed by the fact that numerous vaccine mandates are being promulgated in ways that are causing people to lose their jobs, homes, and sense of security without due consideration of religious beliefs and medical autonomy. Forced medical procedures are quintessentially and historically un-American and yet a glaring exception has been made for vaccinations as a prerequisite for children to attend school. The new vaccine mandates involve a breadth of medical autonomy infringement never before seen in American history, and they apply to adults as well as schoolchildren. This article addresses the Fifth Circuit’s injunctive relief against enforcement of the recent Occupational Safety and Health Administration (OSHA) vaccine mandate and it is the first in a series of articles explaining legal challenges to vaccine mandates and what is going on in the courthouses today.

On September 9, 2021, President Biden announced that the Department of Labor was in the process of developing an emergency rule to require all employers with 100 or more employees to fully vaccinate all employees or subject them to a COVID test at least once a week. On November 5, 2021, OSHA announced an emergency temporary standard (ETS) setting forth a vaccine mandate consistent with Biden’s directive. On November 12, 2021, the Fifth Circuit Court of Appeals issued a preliminary injunction to halt enforcement of the ETS vaccine mandate pending further proceedings and specifically ordered OSHA to take no steps to enforce the ETS pending further court order. The Fifth Circuit’s injunction remains in effect pending a ruling by the Sixth Circuit.

Biden’s and OSHA’s attempts to force millions of Americans to take unwanted medication in the form of a “vaccine” (note that the Centers for Disease Control changed the definition of “vaccine” in 2020 so that the COVID-19 injections could be labeled “vaccines”) constitutes an unprecedented attempt to use federal regulatory power to override individuals’ medical autonomy–the most fiercely protected individual interest arising from the Liberty Clause.

The constitutional problems with the mandate are largely structural, arising from the separation of powers and the Framers’ deep commitment to limiting federal power by enumerating only so many subjects over which Congress has jurisdiction under Article I, Section 8, with all other powers reserved to the states pursuant to the Tenth Amendment.

Not only does Congress (which created OSHA) lack the authority to create such “sweeping” public health pronouncements on matters of public health – one of the general powers reserved to the states – but in addition OSHA failed to follow its own prior positions concerning COVID-19 as well as its own regulatory guidelines. The entire process by which Biden’s vaccine mandate was pushed via OSHA smacks of desperation and manipulation.

Accordingly, numerous lawsuits were filed to challenge the OSHA ETS on constitutional and other grounds. The lawsuits were consolidated under a federal rule to select randomly one federal appellate court to review efficiently issues common to the pending lawsuits. The case consolidation landed in the Sixth Circuit, and one challenger promptly filed a petition on November 17, 2021 for a hearing en banc, seeking affirmation of the Fifth Circuit’s injunction.

It seems likely that the Sixth Circuit will agree that an injunction to halt enforcement of the ETS is appropriate, for all of the reasons identified in the Fifth Circuit’s injunction. The remainder of this article explains the Fifth Circuit’s decision.

At the outset, the Fifth Circuit found “cause to believe there are grave statutory and constitutional issues” with the ETS that seeks to force “unwilling employee to take their shots, take their tests, or hit the road.” US Supreme Court precedent delineates four factors to consider when an injunction is requested: 1) whether the party seeking a stay has made a strong showing of succeeding on the merits  (to obtain a permanent injunction); 2) whether failure to issue a stay will cause irreparable harm; 3) whether issuing the stay will substantially injure opposing parties; and 4) whether the public interest supports a stay.

As to the first factor, the court found that despite the “dubious assumption” that the mandate could survive constitutional scrutiny, it is “nonetheless fatally flawed” by its own terms, being woefully both over-inclusive and under-inclusive. It is over-inclusive because it applies to all industries, even those where risks of infection are minuscule such as “a security guard on a lonely night shift.” There is no exception for natural immunity, which has been known for decades to be superior to vaccine-induced immunity, rendering it further over-inclusive (it would force naturally immune persons to take endure the unnecessary risks of vaccination or be bogged down with a weekly test despite having superior natural immunity).

It is also under-inclusive by failing to protect employees with 99 or less employees from the “grave danger” OSHA attempts to rely on to justify its ETS. If the danger of COVID infections remains “grave,” then why are day care centers where people work in small areas with many persons not subject to the ETS? The mandate is a “one-size-fits-all sledgehammer” that falls short of OSHA’s burden to prove “grave danger” and to prove that the ETS is “necessary.” OSHA’s ETS burden sounds similar to the most stringent test for constitutionality known as “strict scrutiny,” which has been declared the test for medical autonomy infringement and also places the burden of proof on the government. The mandate also fails to meet the standard of addressing a “new hazard” confronting employees in the workplace (and contradicts prior OSHA pronouncements concerning COVID).

In short, Biden’s and OSHA’s attempt to “shoehorn an airborne virus” that is not life-threatening to the vast majority of Americans into a toxic and poisonous substance was called a “transparent stretch” by the court, and thoroughly disingenuous: “The under-inclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary” and “the Mandate flunks a cost-benefit analysis here.” The senselessness of the mandate becomes clear upon critical analysis. It seems like more of a vaccine sales tactic than an attempt to enhance public health.

Second, the harm caused by the ETS would be irreparable. Individuals face losing their jobs and financial security to avoid the COVID vaccine or face ongoing burdensome testing – assuming they do not suffer serious adverse effects or die from the vaccine. Violations of constitutional rights – for any length of time – constitutes “irreparable injury,” and the Fifth Circuit opined in dictum that, apart from the OSHA regulation-based failures of the ETS, it is unconstitutional per se as outside of the scope of congressional power created by Article I, Section 8’s Commerce Clause. Employers subject to the ETS also would be irreparably injured due to the extraordinary and nonrecoverable compliance costs.

Third, the temporary injunction will not harm OSHA. “Any interest OSHA may claim in enforcing an unlawful (and likely unconstitutional) ETS is illegitimate.” In addition, there can be no “harm” from being denied the ability to issue unlawful and unconstitutional dictates.

Finally, staying the ETS is in the public interest. “From economic uncertainty to workplace strife, the mere specter of the Mandate has contributed to untold economic upheaval in recent months.” The Fifth Circuit also noted, “The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from
federal overreach.”

The Fifth Circuit’s opinion is a breath of fresh air in a sea of insanity surrounding the vaccine mandates and vaccine passports. But it is a limited decision grounded in Biden’s and OSHA’s inappropriate power-grab to push “vaccines” on the public. The question remains: What happens if a state passes a COVID vaccine mandate in the regular course of business, which would circumvent the OSHA regulatory-based and constitutional failures explained by the Fifth Circuit opinion that warranted the temporary injunction? The individual Liberty Clause-based answer will be provided in my next article for The Daily Clout.

Deana Pollard Sacks is originally from Gig Harbor, Washington and attained law degrees from the University of Southern California and U.C. Berkeley. She is licensed to practice law in the  United States Supreme Court, California, and Washington. As a law professor, her scholarship has centered on civil rights, children’s health and development, implicit bias, and regulation of dangerous speech.  She has authored numerous law review articles and was a contributing author in the groundbreaking book, Implicit Racial Bias Across the Law (Cambridge University Press, 2012). In 2014, she started a grassroots talk show, Meet The Professors (, to provide free public access to professors’ expertise concerning  pressing social issues in a conversational and upbeat format. She joined the DailyClout team in 2021 and is the model legislation drafter. 
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16 thoughts on “FIVE FREEDOMS: The Fifth Circuit’s Temporary Injunction Halting OSHA’s Vaccine Mandate [EXPLAINED]”

  1. Also, BillAu, we need to remember the apparent phenomenon reported widely of “vaccine shedding.” The fact that unvaccinated people are reported to catch something from vaccinated people — the spike protein to be precise. Which appears to turn the body against itself. Through all these complexities I do not think anyone can prove what an unisolated “virus” is or that it even exists. And the protocols surrounding this “virus” are so dishonest, coercive, and corrupt, one must be naturally suspect. Why is all the emphasis, for example, on a mRNA non-vaccine vaccine? — rather than proven treatments such as Ivermectin and others? Why are there no PSA’s about vitamins and nutrients to help protect oneself from “covid” rather than mandates that you have to take the “vaccine” and wear a facemask and stay at home and report your whereabouts to the police via your cellphone or else end up in a quarantine camp? This is clearly not about health, it is about planetary control, exploitation, and depopulation. The whole thing is suspect, from beginning to end. For an historical precursor, study the high deathrate to the “HIV-treatment” pharma drug AZT as promoted by Fauci forty years ago for AIDS (also with no isolated virus). Very profitable, very deadly. So whether this virus even exists, save as a phony justification for control and genocide via the “Vax,” the results are what need to be analyzed, and recognized, not just the means. Cui bono? Who benefits from all this massive genocidal corruption? They are the ones who need to be investigated and brought to justice.

  2. BillAu — To address the vital question, is the virus real, I reprint the following from a Rumble post. Also, symptoms of “covid” could be from mass 5G pollution, or chemtrails, or God knows what else. This is all similar to the deadly pandemic of 1918 which seems to be from injection, not from natural viral infection. But this speaks for itself:
    TrustingInJesusChrist, 5 hours ago
    How do you get “variants” of a “virus” nobody, ABSOLUTELY NO ONE IN ANY NATION ON EARTH, has removed from an infected person, isolated, and proven the actual existence of COV SARS 2, AND that it’s this ISOLATED “virus” that’s causing illness and death? They fed some data sequences into a computer, & the computer generated an image of this COV SARS 2 “virus”, and to this day, that computer generated image is the only existence of this “virus”, but it’s been sold to the majority of the world. Also, how do you test for a “variant” when there’s no accurate test for COV SARS 2, because the PCR test can’t distinguish “COV SARS 2” from lnfluenza. (which its designer said is not to be used for diagnosis of any disease, because depending on how many cycles you run, you can find virtually ANYTHING…that’s why fruit tests + for “Covid”). Maybe that’s why it seems “Covid” just replaced the flu. That’s why the statistics surrounding the cases and deaths from “Covid”, once the numbers are made accurate by removing the CDC’s admitted false cases by calling deaths and hospitalizations WITH Covid, not FROM Covid, as Covid cases and deaths, that the numbers are virtually identical to previous lnfluenza statistics. They just renamed the flu, showed the world a computer generated image, & the world ran in fear, & gave up their rights, in exchange for “safety”, including bodily autonomy, & the elites laughed hysterically at the scared sheeple. It’s obvious THEY aren’t concerned about any plague, as THEY don’t do the things they mandate the sheeple to do, because THEY know there’s nothing to fear. The deadly pathogen is a bioweapon THEY created & THEY know it’s received by injection. And the sheeple line up, & line their children up, to take the bioweapon injections, & they start dying, or having their health destroyed, in droves. They’re taking the names of the “scariants” from some leftist book, I forgot the name. What happened to critical thinking? What a ruse.😣 Same w/ climate hoax.

  3. I recently drove by my local VA hospital in CA. The place looks like a war zone. Tents are everywhere. The several entrances are more guarded than Fort Knox. Staff in long white coats roam the campus. I’m very disappointed that the VA would fall for this plandemic/scamdemic…rooty toot toot.


      1. Yes, I was so diagnosed. Spent 7 hours first visit, 8 hours second at local hospital. Took IV antibody treatment and (thanks to a colleague) Ivermectin. Lasted about two weeks. So weak I could not even get out of bed. I am a skeptic about the virus, which (to best of my knowledge) has never been isolated. I adamantly oppose the vax. Perhaps it was a dose of the flu. But it hit me hard.

      2. Yes Professor Jim. Flu has been lethal for hundreds of years. This is nothing new. Its good that you survived it.

        I had flu about a year ago. It kept me in bed for over a week. Temperature, headache, body aches, etc. Not a pleasant experience.

      3. Well Jim Fetzer said on the show he would have natural resistance to covid because he had had covid. Jim Fetzer how do explain the Jews all (nearly) getting the vaccination, and in Caulfield (full of Jews) Melbourne Australia most have been vaccinated? Even on 911 the jews were warned in their synagoues beforehand, they are protected. The Muslim leaders often tell their people not to get vaccinated, so that would suit the Jews too.

  4. Long before this I worked out WHO and the Vax companies are crooks. There was swine (or possibly bird) flu. WHO said it was serious. Then later they denied it. The Vax companies made a fortune selling the vaxes that were hardly used. I think similar this time to make money, but a real scare. Also Europe had negative interest rates, so this got the government’s in massive debt, do now positive interest rates.

    1. I remember the many negative reports about the swine flu shots so I avoided them….I also avoid the covid jabs in 2021. I also now avoid flu shots.

  5. I got the Vax so I could lead a normal life. Without it I can’t work etc. Vaccinations have been around for thousands of years. The Chinese started it and it spread to Europe. As a kid I got vaxed with all the other kids. But these cases are questionable, but I hope me and 90% of Melbourne are ok too. Things have changed, when I was young we were in a line, they used the same needle for everyone, they dipped it in an antiseptic or method or whatever between kids.

  6. The virus killed someone I briefly knew. He was the father of kid at my son’s class at school. My brother’s girlfriend was quarantined because the doctor where her daughter works caught COVID and nearly died. That doctor was anti-vax. I also met a nurse who works in a COVID ward so the virus exists. I was unsure before, whether to believe the conspiracy as stuff or not. I now know there is a COVID virus. But everything about it is dodgy, it may be man-made etc.

  7. BillAu There is a virus? Show me a photo of it. Not an “artist’s rendering,” but an actual photo of it. One advises anyone who has taken any of the mRNA “vaccines” to do everything you can to protect your health now and in the future. And seriously reconsider not taking any of the “boosters” for the eternal “variants” — also unisolated and unphotographed. For universal injections of the “vaccine” seems to be the purpose of the whole psyop. Gee, I wonder why. Please google: Agenda 21 and Bill Gates Eugenics and: to do your due diligence before proclaiming there is a virus and/or that people should be jabbed or be social outcasts. One third of the population seems to disagree with you. And many are striving to save their societies from a genocidal totalitarian takeover.

    1. If I could , I would have resisted vaccination more, but once I saw the virus was real I took the risk. After all if it was real, maybe the jab might even protect me. Most things dodgy seem to involve Israel, so if the Vax was dangerous , I don’t think they would have used the Vax on their own people. The Jews were warned about 911 in their synagogues , but all of Israel got vaxed, so the Vax must be safe and the virus real.

  8. The president is not Biden because Trump won , but also the guy they call Biden is fake, not Biden. I was forced to get the vaccine or be a social outcast and unable to work I hope I am OK and maybe it will work in protecting me and my vaccinated family and relatives. There is a virus.


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