As you probably know by now, the Sixth Circuit vacated the stay of OSHA’s vaccine mandate on Friday evening, allowing OSHA to move enforce its regulation, with an substantial, careful opinion by Judge Stranch (who was joined by Judge Gibbons) finding that OSHA has the statutory authority to issue and enforce the emergency temporary standard. Judge Larsen, the third judge on the motions-turned-merits panel, dissented with another significant opinion. We’ll follow up on Monday with more analysis of those opinions, and their potential impact on the Supreme Court. Today, however, OSHA delayed implementation of the emergency temporary standard until January 10. As a practical matter, lifting the stay only means that OSHA can use December to make preparations for implementing the ETS.
As expected, petitioners raced to filed emergency applications for a stay in the Supreme Court on Friday, with some also using the lesser-known procedure of a cert petition “before judgement.” That’s often a tough sell, but everyone expects the Supreme Court to weigh in on this case sooner rather than later. Justice Kavanaugh, as the relevant circuit justice, is currently weighing those emergency motions to stay, though he has the option to send the issue immediately to the full court. OSHA’s decision to delay enforcement takes some of the urgency away from the issue, so hopefully the Justices can consider these issues carefully.