Biden faces uphill climb as vaccine mandate case assigned to new court, experts say

The legal fight over the Biden administration’s workplace vaccine mandate was transferred to a Cincinnati-based federal appeals court Tuesday where experts say the administration may soon face an uphill climb as it seeks to have the mandate reinstated.

The move came after a Washington, D.C., judicial panel selected the court at random from the nation’s 12 regional federal appeals courts and combined the various legal challenges filed across the country into a single lawsuit.

The random drawing took place after the New Orleans-based 5th U.S. Circuit Court of Appeals temporarily blocked the workplace mandate, which requires businesses with at least 100 employees to have their workers either receive the COVID-19 vaccine or submit to regular testing and mask-wearing.

Although the Cincinnati-based 6th U.S. Circuit Court of Appeals, where the case has been reassigned, is considered somewhat less conservative than the 5th Circuit court that rebuffed the mandate, Tuesday’s move was hardly a resounding victory for the administration, legal experts said.

“Overall, the Sixth Circuit may not be as hyper-conservative as the Fifth Circuit, but it is among the country’s most conservative circuits,” said Lawrence Gostin, a law professor at Georgetown University. “This isn’t good news for the Biden administration.”

The Biden administration is soon expected to ask the newly-assigned court to lift a temporary freeze placed on the mandate last week by a three-judge panel of the 5th Circuit. In court filings, the administration has argued that each day the mandate is blocked “would likely cost dozens or even hundreds of lives.”

The administration, through the Occupational Safety and Health Administration (OSHA), issued its emergency vaccinate-or-test requirement in early November, sparking immediate legal challenges from states, employers and religious groups.

Sean M. Marotta, a partner at the law firm Hogan Lovells, said OSHA “faces an uphill battle and then some” in the upcoming battle before the newly-selected 6th Circuit.

“This is a good draw for the mandate challengers, one of the best they could have hoped for,” he said, referring to the selection of the Cincinnati-based federal appeals court.

Marotta added that the degree of difficulty will depend on which three of the court’s judges are randomly selected to preside over the case — or whether the court decides to bypass a three-judge panel and hear the case before the full bench.

Gostin, of Georgetown, called the 6th Circuit “a perfect example” of how former President Trump succeeded in pushing federal courts in a strongly conservative direction through the judges he nominated while in office. 

“Once considered a center-right circuit, the Sixth Circuit has, thanks to Trump appointments, swung hard in the conservative direction,” he said.

Updated at 5:50 p.m.