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I read Josh Blackman's article on this at The Volokh Conspiracy.

https://reason.com/volokh/2021/12/17/breaking-6th-circuit-dissolves-5th-circuit-stay-in-osha-mandate-case/

It was not clear to me there could be a "second bite of the apple" at an en banc hearing. Using Brian Daucher's comment, it appears the dissenting judge in this case (Judge Larsen), would be the ninth vote to reinstate the stay.

The second judge (Gibbons) wrote a concurring opinion citing the Chevron rule which says (to my non-lawerly understanding) the judiciary should generally be deferential to the administrative state on policy questions.

So, despite Judge Strand's histrionics about "the virus", I think the case will ultimately be decided on legal grounds, grounds which have evolved more or less quietly to empower the Federal government to do things we really might not approve of had some earlier decisions been more broadly controversial than they appeared at the time.

Dec 18, 2021
at
5:09 PM

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