One U.S. Circuit Court Is Breaking Every Rule in the Book to Push Its Radical Agenda
It’s one thing for conservative judges to reach conservative outcomes. It’s something else entirely for them to ignore the Supreme Court and standard court procedures in order to reach those outcomes. Yet in recent months, that’s exactly what the radical U.S. Court of Appeals for the 5th Circuit—which has jurisdiction over Texas, Louisiana, and Mississippi—has been consistently doing.
Two recent challenges to federal government efforts to address the COVID-19 pandemic illustrate the problem. In both cases, the 5th Circuit let normal court procedures fall by the wayside—and in both cases, it appeared to do so in order to evince its hostility not only to the Biden administration pandemic’s response, but also to the power of the federal government more broadly.
Consider, for example, the recent litigation challenging the Occupational Safety and Health Administration’s vaccinate-or-test policy. Recognizing that “workers are becoming seriously ill and dying as a result of occupational exposures to COVID-19,” OSHA required businesses with 100 or more employees to have their employees either get the COVID-19 vaccine or comply with enhanced safety measures for unvaccinated employees (including wearing face coverings and weekly COVID-19 testing).
Challenges to the policy were filed in virtually every court of appeals, and under federal law, the challenges were supposed to be consolidated in a single court of appeals via lottery. The lottery process was established in the late 1980s to prevent litigants from trying to game the system by “rac[ing] to the courthouse to get their [challenge] stamped as early as possible under the rule that selected venues based on who filed first.” Under the lottery system, court assignment is entirely random—the court that will hear all of the challenges is picked “from a drum containing an entry for each circuit” where a challenge is pending. This was no secret, and other courts of appeals waited for the lottery to take place so that the assigned court could consolidate the cases and proceed as it thought fit.
But not the 5th Circuit. The 5th Circuit rushed to issue its own stay of OSHA’s policy before the lottery took place—and it did this in November, even though employers were not required to comply with the OSHA policy until January. Ultimately, it was the U.S. Court of Appeals for the 6th Circuit (the lottery winner)—not the 5th—that was supposed to provide the first court ruling on whether the OSHA policy could go into effect. But because the 5th Circuit skipped the line, it had the first say, and the federal government had to begin its litigation in the 6th Circuit by asking the 6th Circuit to lift the 5th Circuit’s stay.
https://www.msn.com/en-us/news/us/one-us-circuit-court-is-breaking-every-rule-in-the-book-to-push-its-radical-agenda/ar-AATd4hd
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