21A247 001 Dec 18 2021 Main Document 20211218002842314 Scotus Stay Request Osha (U.S.)

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No. 21A____ 
In the Supreme Court of the United States 
___________________________________ 
IN RE: OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, INTERIM FINAL RULE: 
COVID-19 VACCINATION AND TESTING; EMERGENCY TEMPORARY STANDARD 86 FED. 
REG. 61402, ISSUED ON NOVEMBER 5, 2021 
___________________________________ 
ON APPLICATION FOR STAY OF ADMINISTRATIVE ACTION AND PETITION 
FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT  
__________________________________ 
EMERGENCY APPLICATION FOR AN ADMINISTRATIVE STAY AND 
STAY OF ADMINISTRATIVE ACTION, AND ALTERNATIVE PETITION 
FOR WRIT OF CERTIORARI BEFORE JUDGMENT 
___________________________________ 

i 
 
TABLE OF CONTENTS 
Page 
TABLE OF CONTENTS ................................................................................................. i 
TABLE OF AUTHORITIES ......................................................................................... iii 
PARTIES TO THE PROCEEDINGS BELOW ........................................................... vii 
OPINIONS BELOW ...................................................................................................... 2 
JURISDICTION ............................................................................................................. 3 
STATEMENT ................................................................................................................. 3 
REASONS TO GRANT THE APPLICATION .............................................................. 7 
I. 
The Court should stay the Vaccine Mandate’s enforcement pending 
review ............................................................................................................. 7 
A. 
The States will likely prevail on the merits ............................................ 8 
1. 
COVID-19 is not an occupational danger that OSHA may regulate 8 
2. 
COVID-19 does not present the type of “grave” danger that the 
statute requires ................................................................................. 14 
3. 
The Vaccine Mandate does not satisfy the Emergency Provision’s 
necessity requirement ....................................................................... 19 
4. 
The challenged standard is not a “temporary” response to an 
“emergency” ....................................................................................... 23 
5. 
The major-questions doctrine, the federalism canon, and the 
constitutional-doubt canon require the States’ reading .................. 25 
B. 
The States and their citizens will be irreparably harmed without a 
stay .......................................................................................................... 31 
C. 
Staying the unlawful Vaccine Mandate will promote the public 
interest and will not substantially harm others ................................... 33 
II. 
In the alternative, the Court should grant certiorari before judgment 
and decide this case on an expedited basis ................................................. 35 
III. 
The Court should issue an immediate administrative stay ....................... 36 

ii 
 
CONCLUSION ............................................................................................................. 37 
 APPENDIX: 
 
Appendix A:   
Decision Dissolving Stay in IN RE: OCCUPATIONAL SAFETY AND 
HEALTH ADMINISTRATION, INTERIM FINAL RULE: COVID-19 
VACCINATION AND TESTING; EMERGENCY TEMPORARY STANDARD 86 
FED. REG. 61402, ISSUED ON NOVEMBER 5, 2021, —F.4th— (6th 
Cir., Dec. 17, 2021) 
 
Appendix B:   
Order Denying, and Opinions Concurring and Dissenting in 
Denial of, Petitions for Initial Hearing En banc in IN RE: 
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, INTERIM 
FINAL RULE: COVID-19 VACCINATION AND TESTING; EMERGENCY 
TEMPORARY STANDARD 86 FED. REG. 61402, ISSUED ON NOVEMBER 
5, 2021, —F.4th— (6th Cir., Dec. 15 2021) 
 
 

iii 
 
TABLE OF AUTHORITIES 
Cases 
Page(s) 
Abbott v. Perez, 
138 S. Ct. 2305 (2018) ...................................................................................... 31, 32 
Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 
141 S. Ct. 2485 (2021) ..................................................................................... passim 
Asbestos Info. Ass’n v. OSHA, 
727 F.2d 415 (5th Cir. 1984) ............................................................................ 11, 19 
Boumediene v. Bush, 
553 U.S. 723 (2008) ................................................................................................ 34 
BST Holdings, L.L.C. v. OSHA, 
17 F.4th 604 (5th Cir. 2021) ............................................................................ passim 
Coal. to Def. Affirmative Action v. Granholm, 
473 F.3d 237 (6th Cir. 2006) .................................................................................. 33 
Crowell v. Benson, 
285 U.S. 22 (1932) .................................................................................................. 28 
Dep’t of Commerce v. New York, 
139 S. Ct. 2551 (2019) ............................................................................................ 17 
Does 1-3 v. Mills, 
142 S. Ct. 17 (2021) ................................................................................................ 25 
Elrod v. Burns, 
427 U.S. 347 (1976) ................................................................................................ 31 
Fla. Peach Growers Ass’n, Inc. v. U. S. Dep’t of Lab., 
489 F.2d 120 (5th Cir. 1974) .................................................................................. 19 
Frank Diehl Farms v. Sec’y of Lab., 
696 F.2d 1325 (11th Cir. 1983) .............................................................................. 10 
Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 
561 U.S. 477 (2010) ............................................................................................ 1, 26 
Gundy v. United States, 
139 S. Ct. 2116 (2019) ............................................................................................ 30 

iv 
 
Heffernan v. City of Paterson, 
578 U.S. 266, 136 S. Ct. 1412 (2016) ..................................................................... 36 
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 
448 U.S. 607 (1980) ............................................................................................ 3, 19 
Jacobson v. Massachusetts, 
197 U.S. 11 (1905) .................................................................................................. 29 
Maryland v. King, 
567 U.S. 1301 (2012) .............................................................................................. 31 
Melendres v. Arpaio, 
695 F.3d 990 (9th Cir. 2012) .................................................................................. 31 
Miller-El v. Cockrell, 
537 U.S. 322 (2003) ................................................................................................ 18 
NFIB v. Sebelius, 
567 U.S. 519 (2012) .......................................................................................... 29, 30 
Nken v. Holder, 
556 U.S. 418 (2009) ........................................................................................ 7, 8, 33 
Nken v. Mukasey, 
555 U.S. 1042 (2008) .............................................................................................. 35 
Planned Parenthood of Se. Pennsylvania v. Casey, 
505 U.S. 833 (1992) ................................................................................................ 26 
Reno v. Koray, 
515 U.S. 50 (1995) .................................................................................................. 11 
Roman Cath. Diocese of Brooklyn v. Cuomo, 
141 S. Ct. 63 (2020) .......................................................................................... 31, 34 
SEC v. Chenery Corp., 
318 U.S. 80 (1943) ............................................................................................ 20, 23 
Touby v. United States, 
500 U.S. 160 (1991) ................................................................................................ 30 
United States v. Morrison, 
529 U.S. 598 (2000) ................................................................................................ 29 
Util. Air Regul. Grp. v. EPA, 
573 U.S. 302 (2014) ............................................................................................ 1, 26 

v 
 
Wisconsin Cent. Ltd. v. United States, 
138 S. Ct. 2067 (2018) .............................................................................................. 9 
Youngstown Sheet & Tube Co. v. Sawyer, 
343 U.S. 579 (1952) ................................................................................................ 34 
Statutes and Constitutional Provisions 
U.S. Const. art. I, §8, cl. 3 ............................................................................................ 28 
29 C.F.R. §1910.1020 ................................................................................................... 11 
56 Fed. Reg. 64004 (Dec. 6, 1991) ............................................................................... 13 
86 Fed. Reg. 61402 (Nov. 5, 2021) ........................................................................ passim 
28 U.S.C. §1254 .............................................................................................................. 3 
28 U.S.C. §1331 .............................................................................................................. 3 
28 U.S.C. §2101 ........................................................................................................ 3, 35 
28 U.S.C §2112 ............................................................................................................... 6 
29 U.S.C. §651 ................................................................................................................ 3 
29 U.S.C. §652 .............................................................................................................. 19 
29 U.S.C. §655 ....................................................................................................... passim 
29 U.S.C. §667 .................................................................................................... 4, 10, 32 
29 U.S.C. §669 .............................................................................................................. 10 
29 U.S.C. §675 .............................................................................................................. 10 
2021 W. Va. Pub. Acts, 3d Extraordinary Sess. ......................................................... 31 
COVID-19 Vaccination and Testing; Emergency Temporary Standard, 
86 Fed. Reg. 61402-01 (Nov. 5, 2021) ...................................................................... 5 
Idaho Code §39-9003 .................................................................................................... 31 
Tenn. Code Ann. §14-2-101 ......................................................................................... 31 
Tenn. Code Ann. §14-2-102 ......................................................................................... 31 
Tenn. Code Ann. §14-2-103 ......................................................................................... 31 

vi 
 
2021 Tenn. Pub. Acts, 3d Extraordinary Sess. ........................................................... 31 
W. Va. Code §16-3-4b ................................................................................................... 31 
Other Authorities 
The American Heritage Dictionary of the English Language (1973) ........................ 14 
Application to Vacate Stay of Preliminary Injunction, United States v. 
Texas, No. 21A85 (U.S., Oct. 18, 2021) ............................................................ 35, 36 
Black’s Law Dictionary (11th ed. 2019) ...................................................................... 19 
Jeffrey S. Sutton, Who Decides? States as Laboratories of 
Constitutional Experimentation (2021) ................................................................. 33 
Jennifer B. Griffin, et al., SARS-CoV-2 Infections and Hospitalizations 
Among Persons Aged ≥16 Years, by Vaccination Status—Los 
Angeles County, California, May 1–July 25, 2021, MMWR Morb 
Mortal Wkly Rep 2021 ........................................................................................... 15 
Odds of Dying, National Safety Council ..................................................................... 15 
Petition for Writ of Certiorari Before Judgment, Dep’t of Commerce v. 
New York, No. 18-966 (U.S., Jan. 25, 2019) .......................................................... 35 
Petition for Writ of Certiorari Before Judgment, Dep’t of Homeland 
Sec. v. Regents the University of Cal., No. 18-587 (Nov. 5, 2018) ................... 35, 36 
Remarks by President Biden on Fighting the COVID-19 Pandemic 
(Sept. 9, 2021) ....................................................................................................... 5, 6 
U.S. Government Accountability Office, Workplace Safety and Health, 
GAO-12-330 (Apr. 2012) ........................................................................................... 3 
Webster’s Third New International Dictionary (2003) .............................................. 14 
 
 

vii 
 
PARTIES TO THE PROCEEDINGS BELOW 
The petitioners below included the applicants here: the States of Alabama, 
Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Ken-
tucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North 
Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, 
West Virginia and Wyoming 
Other petitioners below included:  AAI, Inc.; Aaron Abadi; Aaron Janz; AFT 
Pennsylvania; American Bankers Association; American Family Association, Inc.; 
American Federation of Labor-Congress of Industrial Organizations; American Road 
and Transportation Builders Association; American Trucking Associations, Inc.; An-
swers in Genesis, Inc.; Asbury Theological Seminary; Associated Builders and Con-
tractors of Alabama, Inc.; Associated General Contractors of America, Inc.; Bentkey 
Services, LLC, d/b/a Daily Wire; Beta Engineering, LLC; Betten Chevrolet, Inc.; Brad 
Miller; Brick Industry Association; BST Holdings, LLC; Burnett Specialists; Cam-
bridge Christian School, Inc.; Choice Staffing, LLC; Christian Employers Alliance ; 
Christopher L. Jones; Chuck Winder, in his official capacity as President Pro Tem-
pore of the Idaho Senate; Corey Hager; Cox Operating, LLC; David John Loschen ; 
Denver Newspaper Guild, Communications Workers of America, Local 37074, AFL-
CIO; Dis-Tran Steel, LLC; Dis-Tran Packaged Substations, LLC; Doolittle Trailer 
Manufacturing, Inc.; Doyle Equipment Manufacturing Company; DTN Staffing, Inc.; 
Fabarc Steel Supply, Inc.; FMI – The Food Industry Association; Georgia Highway 
Contractors Association; Georgia Motor Trucking Association; Greg Abbott, Governor 
of Texas; Gulf Coast Restaurant Group, Inc.; Guy Chemical Company, LLC; Heritage 

viii 
 
Foundation; Home School Legal Defense Association, Inc.; HT Staffing, Ltd.; Inde-
pendent Bankers Association; Independent Electrical Contractors – FWCC, Inc.; In-
ternational Foodservice Distributors Association; International Warehouse and Lo-
gistics Association; Jamie Fleck; Jasand Gamble; Job Creators Network; Julio Her-
nandez Ortiz; Kentucky Petroleum Marketers Association; Kentucky Trucking Asso-
ciation; King’s Academy; Kip Stovall; Lawrence Transportation Company; 
Leadingedge Personnel Services, Ltd.; Louisiana Motor Transport Association; Mas-
sachusetts Building Trades Council; Media Guild of the West, the News Guild-Com-
munications Workers of America, AFL-CIO, Local 39213; MFA, Inc.; MFA Enter-
prises, Inc.; MFA Oil Company; Michigan Association of Convenience Stores; Michi-
gan Petroleum Association; Michigan Retailers Association; Michigan Trucking As-
sociation; Miller Insulation Company, Inc.; Mississippi Trucking Association; Mis-
souri Farm Bureau Services, Inc.; Missouri Fam Bureau Insurance Brokerage, Inc.; 
National Association of Broadcast Employees and Technicians, The Broadcasting and 
Cable Television Workers Sector of the Communications Workers of America, Local 
51, AFL-CIO; National Association of Convenience Stores; National Association of 
Home Builders; National Association of Wholesaler-Distributors; National Federa-
tion of Independent Business; Natural Products Association; National Propane Gas 
Association; National Retail Federation; North America’s Building Trades Unions; 
Oberg Industries, LLC; Ohio Grocers Association; Ohio Trucking Association; Opti-
mal Field Services, LLC; Pan-o-Gold Banking Company; Phillips Manufacturing & 
Tower Company; Plastic Corporation; Rabine Group of Companies; Republican 

ix 
 
National Committee; Riverview Manufacturing, Inc.; Robinson Paving Co.; RV Tro-
sclair, LLC; Ryan Dailey; Sadie Haws; Samuel Albert Reyna; Scotch Plywood Com-
pany, Inc.; Scott Bedke, in his official capacity as Speaker of the Idaho House of Rep-
resentatives; Service Employees International Union Local 32BJ; Sheriff Sharma; 
Signatory Wall and Ceiling Contractors Alliance; Sioux Falls Catholic Schools, d/b/a 
Bishop O’Gorman Catholic Schools; Sixarp, LLC; Sixty-Sixth Idaho Legislature; 
Southern Baptist Theological Seminary; Staff Force, Inc.; Tankcraft Corporation; 
Tennessee Chamber of Commerce and Industry; Tennessee Grocers and Convenience 
Store Association; Tennessee Manufacturing Association; Tennessee Trucking Asso-
ciation; Terri Mitchell; Texas Trucking Association; Tony Pugh; Tore Says LLC; Tro-
sclair Airline, LLC; Trosclair Almonaster, LLC; Trosclair and Sons, LLC; Trosclair & 
Trosclair, Inc.; Trosclair Carrollton, LLC; Trosclair Claiborne, LLC; Trosclair Don-
aldsonville, LLC; Trosclair Houma, LLC; Trosclair Judge Perez, LLC; Trosclair Lake 
Forest, LLC; Trosclair Morrison, LLC; Trosclair Paris, LLC; Trosclair Terry, LLC; 
Trosclair Williams, LLC; Union of American Physicians and Dentists; United Associ-
ation of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of 
the United States and Canada; United Food and Commercial Workers International 
Union, AFL/CIO-CLC; Waterblastings, LLC; Wendi Johnston; and Word of God Fel-
lowship, Inc. d/b/a Daystar Television Network. 
The respondents, who were also the respondents below, are the Occupational 
Safety and Health Administration; the Department of Labor; Douglas L. Parker, in 
his official capacity as Assistant Secretary of Labor of Occupational Safety and 

x 
 
Health; James Frederick, in his official capacity as Deputy Assistant Secretary of 
Labor of the Occupational Safety and Health Administration; Martin J. Walsh, in his 
official capacity as the Secretary of Labor; Joseph R. Biden, President of the United 
States; and the United States of America. 
The following parties were proposed intervenors below: Chuck Winder, in his 
official capacity as President Pro Tempore of the Idaho State Senate; Scott Bedke, in 
his official capacity as Speaker of the House of Representatives of the State of Idaho; 
Jose A. Perez; and Nancy C. Perez. 
 

1 
TO THE HONORABLE BRETT KAVANAUGH, ASSOCIATE JUSTICE OF THE SUPREME 
COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SIXTH CIRCUIT: 
 
Neither Congress nor the Executive Branch has been bashful about testing the 
limits of its authority.  For that reason, a “lack of historical” precedent is often “the 
most telling indication” that Congress lacked the power to pass a law, or that an 
agency lacked the power to promulgate a regulation.  Free Enter. Fund v. Pub. Co. 
Acct. Oversight Bd., 561 U.S. 477, 505 (2010) (quoting Free Enter. Fund v. Pub. Co. 
Acct. Oversight Bd., 537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J., dissenting)); 
see also Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014). 
This case involves a historically unprecedented administrative command.  
Relying on a decades-old statute pertaining to workplace dangers—the “Emergency 
Provision,” 29 U.S.C. §655(c)—OSHA promulgated a rule regulating the private 
healthcare decisions of tens of millions of Americans.  COVID-19 Vaccination and 
Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402 (Nov. 5, 2021).  This 
rule—call it the “Vaccine Mandate”—will “require roughly 80 million workers to be-
come vaccinated or face a weekly self-financed testing requirement and a daily mask-
ing requirement.”  App.B-6 (Sutton, C.J., dissenting from the denial of initial hearing 
en banc).  No Administration in history has issued a comparable mandate. 
This case does not present the question whether vaccines or vaccine mandates 
are wise or desirable.  Instead, it presents the narrow questions whether OSHA had 
authority to issue the Mandate, and whether it lawfully exercised whatever authority 
it had.  After all, “our system does not permit agencies to act unlawfully,” even during 
a pandemic and “even in pursuit of desirable ends.”  Ala. Ass’n of Realtors v. Dep’t of 

2 
Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021) (per curiam).  Here, the 
Emergency Provision’s text confirms what the lack of historical precedent suggests:  
OSHA lacked the power to issue the Vaccine Mandate.  Because the State petitioners 
will likely prevail on the merits, and because they have satisfied the remaining stay-
pending-review factors, this Court should stay the Vaccine Mandate.  See App.A-39–
A-57 (Larsen, J., dissenting); App.B-6–B.32 (Sutton, C.J., dissenting from the denial 
of initial hearing en banc); App.B-33–B-42 (Bush, J., dissenting from the denial of 
initial hearing en banc).  The Court should also enter an administrative stay imme-
diately, allowing it time to review the filings in this emergency posture.  Absent a 
stay, the Vaccine Mandate will take full effect on January 4, 2022. 
In addition and in the alternative, the Court should treat this application as a 
petition for certiorari before judgment and grant immediate review of the Vaccine 
Mandate’s legality. 
OPINIONS BELOW 
The Fifth Circuit stayed the Vaccine Mandate pending review.  Its decision is 
published at BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021). 
The Sixth Circuit denied initial en banc hearing on December 15, 2021.  Its 
order, and several opinions respecting the order, are not yet published in the Federal 
Reporter.  But they are reproduced as Appendix B. 
The Sixth Circuit dissolved the stay on December 17, 2021.  Its opinion is not 
yet published, but is reproduced as Appendix A to this application.  

3 
JURISDICTION 
This Court has jurisdiction to resolve this application under 28 U.S.C. §§1331 
and 2101(f).  It has authority to grant certiorari before judgment under 28 U.S.C. 
§1254(1). 
STATEMENT 
1.  Congress passed the Occupational Safety and Health Act “to assure so far 
as possible every working man and woman in the Nation safe and healthful working 
conditions.”  29 U.S.C. §651(b).  The Act created OSHA and empowered the Secretary 
of Labor to standardize, through OSHA, health and safety standards in worksites 
across the country.  The standard-setting process is deliberate and technical.  As of 
2012, it took on average 93 months for OSHA to develop, consider, and finalize each 
of its standards.  U.S. Government Accountability Office, Workplace Safety and 
Health, GAO-12-330, at 8 (Apr. 2012), https://perma.cc/J4Q8-FXWW.   
In extremely limited circumstances, the Secretary can issue an “emergency 
temporary standard” without going through this process.  29 U.S.C. §655(c).  The 
“Emergency Provision” allows OSHA to do so only if:  (1) “employees are exposed to 
grave danger from exposure to substances or agents determined to be toxic or 
physically harmful or from new hazards”; and (2) the “emergency standard is 
necessary to protect employees from such danger.”  Id.  As this demanding standard 
suggests, “Congress intended to restrict the use of emergency standards, which are 
promulgated without any notice or hearing.”  Indus. Union Dep’t, AFL-CIO v. Am. 
Petroleum Inst., 448 U.S. 607, 651 n. 59 (1980) (plurality op.).  And the demanding 
test has served this function.  Before issuing the standard at issue here, OSHA had 

4 
issued only ten emergency standards.  Six were challenged.  Just one of those six 
survived judicial review.  BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 609 (5th Cir. 
2021). 
The Occupational Safety and Health Act leaves room for States to play a role 
in the enforcement of occupational health and safety laws—but emergency standards 
handcuff state discretion. If a “State … desires to assume responsibility for 
development and enforcement therein of occupational safety and health standards 
relating to any occupational safety or health issue with respect to which a Federal 
standard has been promulgated,” it “shall submit a State plan for the development of 
such standards and their enforcement.”  29 U.S.C. §667(b).  When a State chooses to 
have its own program, it must generally “establish and maintain an effective and 
comprehensive occupational safety and health program applicable to all employees of 
public agencies of the State and its political subdivisions.”  Id. §667(c)(6).  And, of 
particular importance here, the State Plan’s standards must be “at least as effective 
in providing safe and healthful employment and places of employment as the 
standards promulgated under section 655”—the same section that contains the 
Emergency Provision.  Id. §667(c)(2) (emphasis added).  Thus, once the Secretary 
issues an emergency temporary standard, States with approved plans must adopt 
those standards too.   
2.  On November 5, 2021—almost a year after vaccines became available to the 
public, and about two months after President Biden declared that he would mandate 
vaccines because his “patience” with unvaccinated Americans was “wearing thin,” see 

5 
Remarks by President Biden on Fighting the COVID-19 Pandemic (Sept. 9, 2021), 
https://perma.cc/YJW3-K3AX—OSHA issued an emergency temporary standard.  See 
COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 
61402-01 (Nov. 5, 2021).  This standard, the “Vaccine Mandate,” applies to most 
employers with 100 or more employees, including States with State OSHA Plans.  Id. 
at 61551, 61462, 61506.  And it saddles these employers with heavy burdens 
pertaining to employees and vaccines.  Each employer must:  “determine the 
vaccination status of each employee”; “require each vaccinated employee to provide 
acceptable proof of vaccination status”; “maintain a record of each employee’s 
vaccination status”; and “preserve acceptable proof of vaccination.”  Id. at 61552.  
Employees who refuse to vaccinate must obtain an approved test once every seven 
days—a test that employers may require employees to pay for.  Id. at 61530, 61532.  
Employers must “keep” unvaccinated employees who do not produce test results 
“removed from the workplace.”  Id. at 61532.  And employers must “maintain a 
record” of test results.  Id.  Unvaccinated employees must be required to wear masks 
at work, except in extraordinarily limited circumstances.  Id. at 61553. 
The Vaccine Mandate gave employers until December 6 to comply with most 
of the standard’s requirements.  Id. at 61554.  Employers have until January 4 to 
comply with weekly testing requirements for not-fully-vaccinated employees.  Id.   
States, for their part, face deadlines of their own.  The adoption of the 
emergency temporary standard by State Plans, the Mandate says, “must be 
completed within 30 days of the promulgation date of the final Federal rule.” See id. 

6 
at 61506 (citing 29 C.F.R. §1953.5(b)).  Further, “State Plans must notify Federal 
OSHA of the action they will take” by November 20, 2021.  Id.   
3.  Numerous parties, including the State petitioners here, challenged the 
Vaccine Mandate in circuit courts across the country.  (The Occupational Safety and 
Health Act requires that parties file their challenges to emergency temporary stand-
ards directly in circuit courts of appeals.  29 U.S.C. §655(f).)  Many of those parties 
sought an immediate stay of the Vaccine Mandate pending judicial review.  The par-
ties that sued in the Fifth Circuit succeeded.  That court issued an order staying the 
Vaccine Mandate and enjoining OSHA from taking any steps to enforce or implement 
it.  BST, 17 F.4th at 619.   
A few days later, the judicial panel on multidistrict litigation selected the Sixth 
Circuit to hear and resolve the challenges to the Vaccine Mandate.  As a result, and 
as required by 28 U.S.C §2112(a)(3), all of the pending challenges were transferred 
to and consolidated in the Sixth Circuit.  The Fifth Circuit formally transferred BST 
to the Sixth Circuit the next day, on November 17.  On November 23—eleven days 
after the Fifth Circuit stayed the Vaccine Mandate—OSHA moved the Sixth Circuit 
to dissolve that stay.  See Respondents’ Emergency Motion to Dissolve Stay, No. 21-
7000, Doc. 69 (6th Cir.).   
On the evening December 17, 2021—two days after the Sixth Circuit denied 
petitions for an initial en banc hearing, see App.B—a divided Sixth Circuit panel 
granted OSHA’s motion and dissolved the stay.  App.A.  Judge Larsen dissented.  She 

7 
would have left the stay in place.  App.A-39–A-57 (Larsen, J., dissenting ).  The States 
filed this application early the next morning.  
REASONS TO GRANT THE APPLICATION 
This case comes to the Court because, a year and a half into this pandemic, the 
Executive Branch claimed to have discovered a power to regulate the private 
healthcare decisions of American workers.  After President Biden announced his plan 
to mandate vaccinations through an emergency temporary standard, it took OSHA 
almost two months to issue that standard.  The “emergency” standard, for its part, 
will not even go into full effect until January.  Given the immensely important issues 
the case presents, and given the likelihood that the States will prevail on the merits, 
maintaining the status quo ante a bit longer is amply justified.  The Court should 
immediately stay enforcement of the Vaccine Mandate pending final judgment. In 
addition, the Court should grant certiorari before judgment and resolve this case on 
an expedited basis.  Finally, the States seek an immediate administrative stay, which 
would give this Court a chance to review the many filings in this matter before ruling 
on the stay request. 
I. 
The Court should stay the Vaccine Mandate’s enforcement pending 
review 
In deciding whether to issue a stay, this Court considers “four factors: ‘(1) 
whether the stay applicant has made a strong showing that he is likely to succeed on 
the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) 
whether issuance of the stay will substantially injure the other parties interested in 
the proceeding; and (4) where the public interest lies.’”  Nken v. Holder, 556 U.S. 418, 

8 
434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).  The first two 
factors “are the most critical.”  Id. 
Here, each factor favors a stay.   
A. 
The States will likely prevail on the merits 
OSHA promulgated the Vaccine Mandate under the “Emergency Provision,” 
which states: 
The Secretary shall provide …  for an emergency temporary standard to 
take immediate effect … if he determines (A) that employees are exposed 
to grave danger from exposure to substances or agents determined to be 
toxic or physically harmful or from new hazards, and (B) that such emer-
gency standard is necessary to protect employees from such danger. 
29 U.S.C. §655(c)(1).  For at least five reasons, OSHA exceeded its power under 
this provision when it promulgated the Vaccine Mandate.  First, COVID-19 is not an 
occupational danger that OSHA may regulate.  Second, COVID-19 does not present 
the type of “grave” danger that the statute requires.  Third, the Vaccine Mandate 
does not satisfy the Emergency Provision’s necessity requirement.  Fourth, the 
challenged standard is not a “temporary” response to an  “emergency.”  Finally, 
various interpretive principles—the major-questions doctrine, the federalism canon, 
and the constitutional-doubt canon—require the States’ reading. 
1. 
COVID-19 is not an occupational danger that OSHA may 
regulate 
“First, as a threshold matter, the Occupational Safety and Health Act gives the 
Secretary power to address only occupational health and safety risks.”  App.B-6 (Sut-
ton, C.J., dissenting from the denial of initial hearing en banc).  It does not apply “to 
all hazards that might affect employees at some point during the 16 hours of each 

9 
weekday and the 48 hours of each weekend when they are not at work, whether the 
hazard arises from a coronavirus of one sort or another, a virulent flu, traffic safety, 
air pollution, vandalism, or some other risk to which people are equally exposed at 
work and outside of work.”  Id.  Because COVID-19 (at most worksites) presents the 
latter sort of risk, it falls outside the Emergency Provision’s scope. 
a.  The goal of statutory interpretation is to “interpret the words consistent 
with their ordinary meaning ... at the time Congress enacted the statute.”  Wisconsin 
Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (quotation omitted).  This 
case therefore calls on the Court to consider how ordinary English speakers would 
understand the phrase “grave danger from exposure to substances or agents … or 
from new hazards” as that phrase appears in a sentence about risks to which 
“employees are exposed.”  In that context, ordinary English speakers would 
understand the phrase as referring to dangers presented by work, not those presented 
by human life generally.  Thus, the Emergency Provision is best read to reach dangers 
to which employees are exposed because they are employees—work-related dangers, 
like mercury exposure in a manufacturing plant—not to dangers presented by the 
mere fact of existence. 
Consider, for example, the dangers posed by violent crime and regional air 
pollution.  The former is a hazard, the latter a danger that arises from a substance or 
agent. Employees may well confront those risks at work.  But OSHA possesses no 
broad emergency power to regulate violent crime or regional air pollution.  For these 
risks do not typically arise from the work itself and would not naturally be described 

10 
as risks to which “employees are exposed.”  Dangers to which “employees are exposed” 
include only those typically described as “occupational dangers.”  As the Eleventh 
Circuit explained almost forty years ago, “for coverage under the Act to be properly 
extended to a particular area, the conditions to be regulated must fairly be considered 
working conditions, the safety and health hazards to be remedied occupational, and 
the injuries to be avoided work-related.”  Frank Diehl Farms v. Sec’y of Lab., 696 F.2d 
1325, 1332 (11th Cir. 1983).   
Context bolsters the point. The Occupational Safety and Health Act, of which 
the Emergency Provision is a part, often refers to “substances,” “agents,” and 
“hazards,” but always in connection with dangers arising from work.  One provision 
requires the agency to make a report “listing … all toxic substances in industrial 
usage.”  29 U.S.C. §675 (emphasis added).  Another directs OSHA to develop “criteria 
dealing with toxic materials and harmful physical agents and substances which will 
describe exposure levels that are safe for various periods of employment, including 
but not limited to the exposure levels at which no employee will suffer impaired 
health or functional capacities or diminished life expectancy as a result of his work 
experience.”  §669(a)(3) (emphasis added).  Still another requires the government to 
conduct studies on “the contamination of workers’ homes with hazardous chemicals 
and substances, including infectious agents, transported from the workplaces of such 
workers.”  §671a(c)(1)(A) (emphasis added).  It is a “fundamental principle of 
statutory construction (and, indeed, of language itself) that the meaning of a word 
cannot be determined in isolation, but must be drawn from the context in which it is 

11 
used.”  Reno v. Koray, 515 U.S. 50, 56 (1995) (quotation omitted).  And the just-
discussed context makes it even more unnatural to read the Emergency Provision—
the “most dramatic weapon in” OSHA’s “enforcement arsenal,” Asbestos Info. Ass’n v. 
OSHA, 727 F.2d 415, 426 (5th Cir. 1984)—as reaching beyond dangers that are fairly 
described as occupational in nature. 
“The agency’s regulations reflect this understanding too.”  App.B-17 (Sutton, 
C.J., dissenting from the denial of initial hearing en banc).  Chief Judge Sutton, in 
his opinion below, collected numerous examples of OSHA regulations demonstrating 
that the agency “in the past has understood its authority in [a] work-anchored way.”  
Id. at B-18.  To name just a couple, OSHA “requires employers to compensate em-
ployees for protective gear and tests needed for work safety,” but makes an exception 
“for costs that are not specific to the workplace,” such as “sunscreen or steel-rein-
forced boots.”  Id. (citing 29 C.F.R. §1910.132(h), (h)(2), (h)(4)(iii)).  OSHA also re-
quires employers to record the “amount of a toxic substance or harmful physical agent 
to which [any] employee is or has been exposed.”  29 C.F.R. §1910.1020(e)(2)(i)(A)(1).  
This requirement does not apply, however, if “the employer can demonstrate that the 
toxic substance or harmful physical agent is not used, handled, stored, generated, or 
present in the workplace in any manner different from typical non-occupational situ-
ations.”  Id. §1910.1020(c)(8).  Other examples reflecting this interpretation are easy 
to find.  See App.B-18 (Sutton, C.J., dissenting from the denial of initial hearing en 
banc).  Agencies have every incentive to construe their powers broadly.  Yet OSHA 

12 
has consistently linked its regulations to occupational dangers.  That is as good a sign 
as any that OSHA’s jurisdiction remains limited to dangers of that sort. 
In the end, whatever “the health and safety challenges of today (air pollution, 
violent crime, obesity, a virulent flu, all manner of communicable diseases) or tomor-
row (the impact of using the internet on mental health), the Secretary does not have 
emergency authority to regulate them all simply because most Americans who face 
such endemic risks also have jobs” where they “face those same risks on the clock.”  
App.B-16 (Sutton, C.J., dissenting from the denial of initial hearing en banc).   
From this, it follows that the Vaccine Mandate is illegal.  For the vast majority 
of covered employees, the COVID-19-related risk presented by work is the same risk 
that arises from human interaction more broadly.  The virus’s “potency lies in the fact 
that it exists everywhere an infected person may be—home, school, or grocery store, 
to name a few.”  App.A-49 (Larsen, J., dissenting).  Because it is not an occupational 
danger, it is not the sort of danger that the Emergency Provision empowers OSHA to 
address. 
b.  The Sixth Circuit’s majority opinion does not meaningfully engage with any 
of this.  It defines “agent” and “substance” and “hazard,” noting that SARS-CoV-2 and 
COVID-19 qualify.  App.A-11.  And it notes that OSHA can regulate (and has regu-
lated) viruses and illnesses—including viruses and illnesses that one can contract 
both at work and outside of work.  App.A-11–12.  The States do not and have not 
disputed either point.  Their argument is that the Emergency Provision speaks only 
to hazards and substances (like saws without safety guards or asbestos-containing 

13 
brake pads) that employees face because of their employment—not to hazards and 
substances (like violent crime or SARS-CoV-2) that employees confront at work only 
because they are “hazard[s] of life in the United States and throughout the world.”  
App.B-37–B-38 (Bush, J., dissenting from the denial of initial hearing en banc).  As 
explained above, the Occupational Safety and Health Act does not empower OSHA to 
regulate the latter sort of danger.     
What is more, the States are happy to assume that viruses are a covered 
danger in some workplaces.  For example, COVID-19 could be a workplace risk at a 
lab that works with SARS-CoV-2; in that setting, work itself would expose employees 
to a COVID-19-related danger.  Similarly, “bloodborne pathogens” present a 
workplace danger to employees whose jobs require work with such pathogens.  App.A-
12.  (And in any event, when OSHA promulgated its bloodborne-diseases standard, it 
trained its attention on occupational exposure, recognizing that the “risk attributable 
to occupational exposure is the difference between the risk faced by exposed workers 
and the background risk faced by the general population.”  56 Fed. Reg. 64004, 64027 
(Dec. 6, 1991).  The Vaccine Mandate is not so focused.)  Along the same lines, OSHA’s 
“workplace sanitation and fire rules,” address workplace risks—employees forced to 
work in unsanitary or unsafe conditions face risks because of their work.  But no 
ordinary English speaker would describe the risk of contracting an endemic illness 
as a danger arising from work.  Perhaps recognizing this defect in its argument, the 
Sixth Circuit notes OSHA’s finding “that workplaces have a heightened risk of expo-
sure to the dangers of COVID-19 transmission.”  App.A-13, 22; see also App.A-24.  

14 
What it fails to appreciate is that the risk is (again, for most professions) not occupa-
tional in nature:  the virus is transmitted at work because work is a place where 
people gather together.  If that sufficed to constituted a workplaces risk, then the 
Occupational Safety and Health Act would cover every danger that humans face as a 
result of being alive.   
2. 
COVID-19 does not present the type of “grave” danger that 
the statute requires   
a.  The word “grave,” at the time of the Emergency Provision’s passage, meant 
exactly what it means today: “very serious; dangerous to life.”  Grave, Webster’s Third 
New International Dictionary (2003); see also Grave, The American Heritage 
Dictionary of the English Language (1973) (“Fraught with danger; critical”).  While 
all dangers are (by definition) dangerous, the adjective “grave” requires more than 
mere danger—it requires especially serious danger.  That insight is bolstered by the 
fact that the Emergency Provision uses the phrase “grave danger” in connection with 
the phrase “from exposure to substances or agents determined to be toxic or 
physically harmful.”  Under “the principle of noscitur a sociis,” words in a statute are 
known by the company they keep.  BST, 17 F.4th at 613 (quoting Yates v. United 
States, 574 U.S. 528, 543 (2015)).  When the phrase “grave danger” appears alongside 
a phrase “connoting toxicity and poisonousness,” the first phrase cannot reasonably 
be interpreted to include dangers (including “airborne virus[es]”) that are “both 
widely present in society” and “non-life-threatening to a vast majority of employees.”  
Id. 

15 
OSHA’s own data show that COVID-19, while dangerous, presents no “grave” 
danger.  For example, the Vaccine Mandate cites a study showing that unvaccinated 
individuals aged 16 or older—a group that includes elderly retirees, who are far more 
at risk than a typical worker—face a 0.6 percent chance of death if they contract 
COVID-19 and a 1.5 percent chance of being admitted to an intensive care unit.  See 
Jennifer B. Griffin, et al., SARS-CoV-2 Infections and Hospitalizations Among 
Persons Aged ≥16 Years, by Vaccination Status—Los Angeles County, California, May 
1–July 25, 2021, MMWR Morb Mortal Wkly Rep 2021; 70(34): 1172, https://perma.cc
/4ZV3-94SA (relied upon at Vaccine Mandate, 86 Fed. Reg. at  61418).  These risks 
are not significantly greater than the risks faced by vaccinated individuals who 
contract COVID-19; those individuals have a .2 percent chance of death and a .5 
percent chance of being admitted to an intensive-care unit.  Id.  While unvaccinated 
workers are three times more likely to die or be hospitalized, a small risk trebled is 
still a small risk.  So both groups face a small risk of serious illness.   
This data dooms OSHA’s case, because the agency concedes that fully 
vaccinated workers face no “grave” danger from COVID-19.  86 Fed. Reg. at 61434.  
OSHA has not explained how the higher-yet-still-small risk faced by unvaccinated 
workers crosses the line from a not-grave danger to a grave danger.  Indeed, the risks 
to both groups are comparable to well-known risks that no one would describe as 
“grave.”  The odds of dying in a motor-vehicle crash at some point during one’s life, 
for example, are 1 in 107 (.93 percent).  See Odds of Dying, National Safety Council, 
https://perma.cc/3FTE-376P.     

16 
The “government’s own data” create further problems for OSHA.  Consider, for 
example, data showing “that the death rate for unvaccinated persons between the 
ages of 18 and 29 is roughly equivalent to that of vaccinated persons between 50 and 
64.”  App.A-49 (Larsen, J., dissenting).  “So an unvaccinated 18-year-old bears the 
same risk as a vaccinated 50-year-old.  And yet,” according to OSHA, “the 18-year-
old is in grave danger, while the 50-year-old is not. One of these conclusions must be 
wrong; either way is a problem for OSHA’s rule.”  Id. 
OSHA’s focus on the dangers faced by unvaccinated individuals gives rise to 
another problem:  the agency cannot measure the existence of a “grave” danger by 
focusing exclusively on the subset of workers (the unvaccinated) most at risk from 
COVID-19.  If it could, then almost any “substance” or “agent” could be said to pose a 
grave danger.  Peanut butter, for example, creates immense danger for individuals 
with severe allergies.  But surely OSHA could not justify a nationwide emergency 
standard regarding the workplace consumption of peanut butter on the ground that 
peanut butter creates a grave risk for this small subset of individuals.  Similarly here, 
even if OSHA could establish that unvaccinated employees face a “grave” danger, the 
Mandate would still be illegal because OSHA has not shown that employees in 
general face a grave danger from COVID-19.  (Conversely, OSHA cannot rely on 
purported harms from the virus to society at large—instead, it must home in on the 
risk presented in the workplace.  See App.A-50 (Larsen, J., dissenting).)  Because 
many elderly individuals are at the highest risk but also retired, population-wide 

17 
statistics cannot prove a grave danger to the workforce.  The States address this point 
in greater depth below, when addressing whether the Mandate is “necessary.”) 
In the end, the Mandate is nothing more than a pretext for increasing the 
number of vaccinated Americans.  See App.B-38 (Bush, J., dissenting from the denial 
of initial hearing en banc).  The White House Chief of Staff thinks so.  He publicly 
endorsed, on Twitter, the view that OSHA’s “vaxx mandate … is the ultimate work-
around for the Federal govt to require vaccinations.”  BST, 17 F.4th at 612 n.13 
(citation and emphasis omitted).  “In reviewing agency pronouncements, courts need 
not turn a blind eye to the statements of those issuing such pronouncements.”  Id. at 
614; see also Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2574 (2019).  Otherwise, 
courts would be made “to exhibit a naiveté from which ordinary citizens are free.”  
Dep’t of Com., 139 S. Ct. at 2575 (quotation omitted). 
That principle applies with special force here, where the agency’s actions are 
inconsistent with its warnings of grave danger.  If OSHA really believed that COVID-
19 satisfied the “grave danger” standard, what could possibly justify limiting the 
Vaccine Mandate to companies with 100 or more employees?  OSHA says it chose this 
number because the agency “is less confident that smaller employers” can implement 
the standard’s requirements “without undue disruption.”  86 Fed. Reg. at 61403.  It 
is inconceivable that OSHA would take administrative ease into account in deciding 
whether small businesses must protect their employees from a risk—exposure to a 
highly lethal gas, for example—that was truly “grave.”  See App.B-27–B-28 (Sutton, 
C.J., dissenting from the denial of initial hearing en banc). 

18 
b.  The Sixth Circuit’s discussion of “grave danger” ignores all of this.  Indeed, 
one would be excused for mistaking its opinion for the Vaccine Mandate itself.  The 
majority’s primary mode of argument consists of quoting the Vaccine Mandate’s find-
ings regarding the illnesses and deaths that COVID-19 has caused.  App.A-22–25.  
But all this does is prove a point not in dispute:  no serious person denies that COVID-
19 is dangerous.  The question is whether that danger amounts to a “grave” danger 
to workers.  On that, the majority has little to say.  It never addresses OSHA’s own 
data showing that both vaccinated employees (whom OSHA concedes are not in grave 
danger) and unvaccinated individuals face low risks of death and serious illness if 
they contract COVID-19.  It never addresses the fact that the government’s own data 
are inconsistent with a finding of “grave” danger across the broad sweep of employees 
the Mandate covers.  App.A-49 (Larsen, J., dissenting).  It accordingly never comes 
to grips with the reality that, on OSHA’s own telling, the only workers who face a 
grave danger do so by “choice”—they have made a “personal medical decision for 
themselves.”  App.B-30 (Sutton, C.J., dissenting from the denial of initial hearing en 
banc).  And it never addresses the fact that the vast majority of the American 
workforce is non-elderly, and thus faces a substantially lower risk.   
It is true enough that courts must pay some degree of deference to an agency’s 
expertise.  App.A-23 (majority op.); see also App.A-38 (Gibbons, J., concurring).  But 
in this context, as in so many others, “deference does not imply abandonment or 
abdication of judicial review.”  Miller-El v. Cockrell, 537 U.S. 322, 324 (2003).  Courts 
must, at the very least, “inquire into whether OSHA ‘carried out [its] essentially 

19 
legislative task in a manner reasonable under the state of the record before [it].’”  
Asbestos Info. Ass’n/N. Am., 727 F.2d at 421.  As the foregoing shows, it did not.  
Simply reciting the agency’s findings and declaring them reasonable does not estab-
lish otherwise.  That is all the Sixth Circuit’s opinion does.      
3. 
The Vaccine Mandate does not satisfy the Emergency 
Provision’s necessity requirement 
a.  The Emergency Provision forbids the issuance of emergency temporary 
standards except in cases where they are “necessary.”  29 U.S.C. §655(c)(1).  Thus, 
OSHA must show not just that the emergency standard is a good idea or effective, 
but also that the agency has little practical choice except to regulate without first 
subjecting its regulation to notice and public comment.  That is what “necessary” 
means:  “needed for some purpose or reason; essential.”  Black’s Law Dictionary 1241 
(11th ed. 2019); accord App.B-19–B-20  (Sutton, C.J., dissenting from the denial of 
initial hearing en banc).  This necessity requirement, which is more demanding than 
the “reasonably necessary or appropriate” standard applicable to most OSHA 
regulations, 29 U.S.C. §652(8); see also Indus. Union Dep’t., AFL-CIO v. Am. 
Petroleum Inst., 448 U.S. 607, 615 (1980), shows that “Congress intended a carefully 
restricted use of the emergency temporary standard,” Fla. Peach Growers Ass’n, Inc. 
v. U. S. Dep’t of Lab., 489 F.2d 120, 130 n.16 (5th Cir. 1974). 
Given the meaning of “necessary,” one problem for OSHA stands out immedi-
ately:  the Vaccine Mandate never finds that its requirements qualify as “necessary” 
in the relevant sense.  Instead of concluding that the Mandate was “indispensable to 
address a grave danger,” the Vaccine Mandate explains why its terms would be 

20 
“beneficial to protect workers and society as a whole.”  App.B-20 (Sutton, C.J., dis-
senting from the denial of initial hearing en banc).  The absence of any such finding 
is a fatal defect.  Because courts may not uphold agency actions based on reasons the 
agency never gave, SEC v. Chenery Corp., 318 U.S. 80, 87 (1943), and because the 
Vaccine Mandate nowhere says that it is essential or indispensable to (rather than 
useful for) arresting a workplace danger, the Vaccine Mandate is unsupported and 
thus invalid. 
Even if OSHA had declared the Mandate indispensable, however, that finding 
would not survive the slightest scrutiny.  For one thing, because vaccines have be-
come freely available to all workers who want them, the government need not 
mandate vaccines to make workers safe—workers can elect to take vaccines or not, 
and those who do will, as OSHA concedes, free themselves from any “grave” danger.  
It is hard to claim that a mandate is necessary “to protect unvaccinated working peo-
ple from themselves” when those same workers could obtain a vaccine for free when-
ever they like.  App.B-23 (Sutton, C.J., dissenting from the denial of initial hearing 
en banc). 
The Mandate’s remarkable breadth also defeats any claim to necessity.  With 
the Vaccine Mandate, OSHA irrationally requires the same thing of every covered 
workplace and worker.  This means that workers who are significantly spaced out 
whenever they are inside (in a warehouse or garage or barn, for example) are treated 
the same as employees bunched together in close, poorly ventilated quarters.  BST, 
17 F.4th at 615.  And it means that the Vaccine Mandate unnecessarily applies even 

21 
to workers who have acquired natural immunity.  Id.; Attachment A-1, Indiana’s Stay 
Mtn, Decl. of Dr. Bhattacharya, Doc.150, ¶23 (6th Cir.). 
OSHA gave no consideration to a more narrowly tailored mandate.  And there 
were obvious options available to it.  “The record does not show that full vaccination 
or weekly testing is necessary on top of a” mask mandate “tailored” to particular in-
dustries and environments.  App.B-21 (Sutton, C.J., dissenting from the denial of 
initial hearing en banc).  OSHA “could focus any requirements on the workers most 
at risk—those over 65, those with pre-existing conditions most vulnerable to the vi-
rus,” and so on.  Id.  “The Secretary could create exemptions for those least at risk, 
say cohorts from age 18 to 49, a population range that faces healthcare risks from 
COVID-19 at roughly the same level as the Secretary’s own assessment of what is not 
a grave risk, with some slightly above and some slightly below.”  Id. (citing 86 Fed. 
Reg. at 61,434).  “Or the Secretary could impose requirements that account for the 
many environments in which Americans work.”  Id.  “But that is not what the rule 
does.”  Id.  Instead, it imposes a uniform approach on “2 out of 3 private-sector em-
ployees in America, in a workforce as diverse as the country itself.”  BST, 17 F.4th at 
615.  That is the anthesis of a showing of necessity. 
OSHA confuses necessity with efficacy.  It trumpets the effectiveness of 
vaccines and masks, but it does little to explain why these specific measures are 
required to address the threat.  Wearing a hazmat suit, for instance, might be an 
effective way to stem the spread of COVID-19.  But no one would suggest that such a 
step is “necessary” to establish a safe workplace.  The agency needs to tie the gravity 

22 
of the threat to the aggressiveness of the required measures and establish that no 
meaningfully less-restrictive means would suffice.  It has not done that.   
In the end, OSHA cannot prove that its Mandate is “necessary” to confront a 
“grave” risk when:  (1) “the key population group at risk from COVID-19—the el-
derly—in the main no longer works”; (2) “members of the working-age population at 
risk—the unvaccinated—have chosen for themselves to accept the risk and any risk 
is not grave for most individuals in the group”; and (3) “the remaining group—the 
vaccinated—does not face a grave risk by [OSHA’s] own admission, even if they work 
with unvaccinated individuals.”  App.B-7 (Sutton, C.J., dissenting from the denial of 
initial hearing en banc).  “Countless lesser and more focused measures were available 
to the Secretary.”  Id.  So a “blunt national vaccine mandate for 80 millions workers 
with little regard to the relevant employment circumstances … was not necessary” in 
the sense demanded by the Emergency Provision.  Id.  
b.  The Sixth Circuit recognized that a “necessary” standard is one “essential 
to reducing the grave danger” in question.  App.A-25.  Yet it denied that a standard 
must be “indispensable” to qualify as “essential.”  App.A-25–A-26 (quoting App.A-44 
(Larsen, J., dissenting)).  This makes little sense, as the words are synonyms.  It 
appears the Circuit was equivocating—claiming to require a showing of necessity 
while actually applying an efficacy standard.  App.A-45 (Larsen, J., dissenting).  
Though it never quite says so expressly, it seemingly accepted the proposition that, 
as long as the standard will work reasonably well, it need not be tailored to any mean-
ingful degree.  Id.; accord App.A-26–31.  For example, although it incorrectly excuses 

23 
OSHA’s failure to “account for the many environments in which Americans work,” 
App.B-30 (Sutton, C.J., dissenting from the denial of initial hearing en banc); see 
App.A-29 (majority op.), it never even addresses OSHA’s failure to consider less re-
strictive measures, such as a “tailored mask mandate,” App.B-21 (Sutton, C.J., dis-
senting from the denial of initial hearing en banc).  Based on its flawed understanding 
of the phrase “necessary,” and based on evidence showing that the Vaccine Mandate 
might be effective at stopping the spread of COVID-19 at worksites, the Sixth Circuit 
found the necessity requirement satisfied.  Since the premise was flawed—“neces-
sary” does not mean “unnecessary but effective”—the argument fails.  (And the ma-
jority never does get around to addressing the Chenery problem discussed above.  See 
also App.A-45 (Larsen, J., dissenting).) 
4. 
The challenged standard is not a “temporary” response to 
an “emergency”  
The Emergency Provision empowers OSHA to issue “emergency temporary 
standard[s].”  29 U.S.C. §655(c).  But the Mandate does not qualify as a “temporary” 
standard, and it did not issue in response to an “emergency” in the relevant sense.  
See App.B-21–B-23 (Sutton, C.J., dissenting from the denial of initial hearing en 
banc).   
a.  Begin with the lack of any emergency.  “Whether one looks to the Secretary’s 
strongly encouraged preference (vaccinate) or discouraged alternative (test and wear 
a mask), it is difficult to understand how on November 5, 2021, an ‘emergency’ sud-
denly took hold requiring the imposition of a vaccine-or-test mandate by January 4, 
2022.”  Id. at B-22.  Masks “are not a new idea”—they “have been a protective tool 

24 
from the outset.”  Id.  “Given the wide availability of this option since the beginning,” 
and given that today “fewer people face lethal risks from COVID-19,” the view that a 
test-and-mask requirement is now required to respond to an “emergency” “sucks the 
concept dry of meaning.”  Id.  And while vaccines are “newer,” they “hardly are a 
revelation.”  Id.  Anyway, their introduction would seem to run counter to OSHA’s 
argument.  Since the vaccines “alleviate the health risks from the pandemic rather 
than make them worse,” the case for an emergency would appear lesser not greater.  
Id.  What is the emergency that called for this standard to issue in late 2021?  “Why 
now?”  Id. 
Even if there were an emergency, a vaccine mandate is not “temporary” in any 
relevant sense.  Id.  Those who vaccinate will be vaccinated for good.  While it is true 
that the Mandate will one day expire, that hardly makes the Mandate’s effects tem-
porary.  To argue otherwise would “convey considerable insensitivity to those who, 
for reasons of their own, are reluctant to roll up their sleeves.”  Id.  “By any measure, 
a vaccine injection is not temporary.”  Id.  “A vaccine may not be taken off when the 
workday ends; and its effects, unlike this rule, will not expire in six months.”  App.A-
51 (Larsen, J., dissenting). 
b.  The Sixth Circuit majority did not address the non-temporary nature of 
vaccination.  It did address the “emergency” requirement.  It stressed that, even if 
OSHA should have acted sooner, it would only “compound[] the consequences of the 
Agency’s failure to act” to hold that “because OSHA did not act previously it cannot 
do so now.”  App.A-19 (quotation omitted).  But the States are not making an estoppel 

25 
argument.  Instead, they are pointing to OSHA’s tremendous delay—and, in particu-
lar, its decision to do nothing until long after vaccines became widely available—as 
evidence that there is not at present any “emergency” calling out for action.  The 
evidence of pretext, which the Sixth Circuit never addressed, casts further doubt on 
any “emergency” finding.   
The Sixth Circuit also noted that OSHA identified an increased return to the 
workplace, along with the rise of Delta and other variants, as establishing an emer-
gency.  Id.  People are returning to work because the situation is safer than it was—
so that, if anything, suggests any emergency is waning.  True, there are variants.  
But there always will be, as that is the nature of viruses.  (OSHA has never claimed 
that vaccines will wipe the virus off the face of the Earth.)  If that were enough to 
prove an emergency, it would portend an indefinite emergency.  And if “human nature 
and history teach anything, it is that civil liberties face grave risks when governments 
proclaim indefinite states of emergency.”  Does 1–3 v. Mills, 142 S. Ct. 17, 21 (2021) 
(Gorsuch, J., dissenting from the denial of application for injunctive relief). 
5. 
The major-questions doctrine, the federalism canon, and 
the constitutional-doubt canon require the States’ reading 
Three interpretive principles require the Court to resolve any lingering 
ambiguity in the States’ favor.   
a. 
Major-Questions Doctrine 
The major-questions doctrine compels the States’ reading.  BST, 17 F.4th at 
617–18; id. at 619 (Duncan, J., concurring); App.B-13 (Sutton, C.J., dissenting from 
the denial of initial hearing en banc).  This doctrine requires “Congress to speak 

26 
clearly if it wishes to assign to an agency decisions of vast economic and political 
significance.”  Util. Air, 573 U.S. at 324 (quotation omitted); see also Realtors, 141 S. 
Ct. at 2489.  The question whether Congress can conscript employers into serving as 
the muscle behind a mandate aimed at regulating private healthcare decisions 
certainly fits the bill.  If Congress wanted to grant such immense power to an agency, 
it would have been much clearer about its intention to do so.  See Realtors, 141 S. Ct. 
at 2489; App.B-13 (Sutton, C.J., dissenting from the denial of initial hearing en banc).  
The doctrine’s application is especially clear in light of the unprecedented 
nature of the Vaccine Mandate.  “When an agency claims to discover in a long-extant 
statute an unheralded power to regulate a significant portion of the American 
economy, [courts] typically greet its announcement with a measure of skepticism.”  
Util. Air, 573 U.S. at 324 (quotation omitted).  Yet OSHA has never issued any re-
motely comparable rule in all its history.  App.B-14 (Sutton, C.J., dissenting from the 
denial of initial hearing en banc).  Its inaction is not likely the product of self-re-
straint.  Agencies consist of government officials, and government officials tend to 
test the limits of their authority.  That is why our Constitution divides power between 
the branches, see The Federalist No. 51 (Madison), p.349 (Cooke, ed., 1961), and “why 
Lord Acton did not say ‘Power tends to purify,’” Planned Parenthood of Se. 
Pennsylvania v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., concurring in the judg-
ment in part and dissenting in part).  Here, as is so often the case, a “lack of historical” 
precedent implies a lack of authority.  Free Enter. Fund, 561 U.S. at 505 (quotation 
omitted). 

27 
OSHA has never denied that this case presents a major question.  It has in-
stead argued that the Emergency Provision unambiguously empowered the agency to 
issue the Vaccine Mandate.  The Sixth Circuit majority agreed.  See App.A-16.  For 
all the reasons laid out above, that argument cannot be taken seriously.  The same 
could be said of its argument that the Vaccine Mandate “is not an enormous expan-
sion of [OSHA’s] regulatory authority.”  App.A-15.  “OSHA has never issued an emer-
gency standard of this scope.”  App.A-52 (Larsen, J., dissenting).  “Each of [the Man-
date’s] few predecessors addressed discrete problems in particular industries.”  Id. 
(collecting examples).  With the Vaccine Mandate, however, OSHA “claims authority 
to impose a vaccinate-or-test mandate across ‘all industries’ on 84 million Americans 
(26 million unvaccinated) in response to a global pandemic that has been raging for 
nearly two years.”  Id.  (quoting 86 Fed. Reg. at 61424).  And, most critical of all, the 
Vaccine Mandate purports to regulate private healthcare decisions, rather than 
workplace safety alone.  That is unprecedented. 
b. 
Federalism canon 
According to the federalism canon, Congress must “enact exceedingly clear lan-
guage if it wishes to significantly alter the balance between federal and state power.”  
Realtors, 141 S. Ct. at 2489 (quotation omitted).  This clear-statement rule functions 
much like the major-questions doctrine, requiring Congress to “speak unequivocally” 
if it means for the federal government to assume powers traditionally wielded by 
States.  App.B-14 (Sutton, C.J., dissenting from the denial of initial hearing en banc).  
The canon applies here because “the States, not the Federal Government, are the 

28 
traditional sources of authority over safety, health, and public welfare.”  Id.; accord 
App.B-33 (Bush, J., dissenting from the denial of initial hearing en banc).   
If Congress wanted to empower OSHA to mandate vaccinations—and thus to 
“nullify all contrary state and local regulations” regarding vaccines—it needed to do 
so expressly.  App.B-6 (Sutton, C.J., dissenting from the denial of initial hearing en 
banc).  The Emergency Provision does not do so, as the foregoing shows.  
The Sixth Circuit denied that its ruling creates any “federalism concerns.”  
App.A-17.  Why not?  Because, although public health has “traditionally been a pri-
mary concern of state and local officials, Congress, in adopting the OSH Act, decided 
that the federal government would take the lead in regulating the field of occupa-
tional health.”  Id. (quoting Farmworker Just. Fund v. Brock, 811 F.2d 613, 625 (D.C. 
Cir. 1987) (internal quotation marks omitted)).  But that argument is circular, be-
cause it assumes that the Act applies in these circumstances—that it applies to public 
health rather than occupational health.  The federalism canon suggests that it does 
not. 
c. 
Constitutional-doubt canon   
Statutes should be construed so as to avoid placing their constitutionality in 
doubt.  Crowell v. Benson, 285 U.S. 22, 62 (1932).  The Emergency Provision is 
unconstitutional, on two separate grounds, if it empowers OSHA to issue the Vaccine 
Mandate. 
Commerce Clause.   The Commerce Clause, which entitles Congress “[t]o 
regulate Commerce … among the several States,” U.S. Const. art. I, §8, cl. 3, is the 
only enumerated power that conceivably empowered Congress to enact the 

29 
Emergency Provision.  While courts have broadly construed the Clause’s language, 
two limiting principles prove relevant here.  First, this Court “always ha[s] rejected 
readings of the Commerce Clause and the scope of federal power that would permit 
Congress to exercise a police power.”  United States v. Morrison, 529 U.S. 598, 618–
19 (2000) (quotation omitted).  Because Congress has no police power, and because 
regulating public health and safety is part of the police power, Jacobson v. 
Massachusetts, 197 U.S. 11, 24–25 (1905), the Commerce Clause gives Congress no 
power to regulate public health and safety.  Second, the Commerce Clause does not 
permit the regulation of private inactivity, such as the decision not to purchase health 
insurance.  NFIB v. Sebelius, 567 U.S. 519, 557–58 (2012) (op. of Roberts, C.J.).   
If the Emergency Provision authorizes the Vaccine Mandate, it runs afoul of 
both limits.  First, the Vaccine Mandate is a public-health regulation:  it regulates 
private healthcare decisions by making life harder for citizens who refuse to care for 
themselves in the federally approved manner.  Second, the Vaccine Mandate 
regulates private inactivity:  those who fail to vaccinate will either be fired or forced 
to obtain expensive weekly testing.   
The Sixth Circuit concluded that, because the Vaccine Mandate requires 
employers to enforce its terms, the Vaccine Mandate simply regulates the economic 
activity of employers engaged in commerce, not the inactivity of citizens or the public 
health.  See App.A-32–33.  That gloss on the Mandate’s operation is creative but 
unavailing.  The Mandate regulates private inactivity by requiring employers to 
enforce the Mandate’s terms in response to employees’ private inactivity—namely, 

30 
the decision not to vaccinate.  That constitutes an impermissible regulation of private 
inactivity.  To illustrate, remember that Congress cannot, under the Commerce 
Clause, make individuals buy health insurance.  NFIB, 567 U.S. at 558 (op. of 
Roberts, C.J.).  No court would permit Congress to evade that rule by passing a law 
forbidding employers from retaining uninsured employees.  That hypothetical law, 
just like the requirement to buy health insurance at issue in NFIB, would regulate 
private inactivity.  So does the Vaccine Mandate.  App.B-37  n.2 (Bush, J., dissenting 
from denial of initial hearing en banc).  
Nondelegation doctrine.  OSHA’s broad reading of the Emergency Provision 
would turn the statute into an unconstitutional delegation of legislative authority.  
“[A] statutory delegation” of policymaking power “is constitutional as long as 
Congress lays down by legislative act an intelligible principle to which the person or 
body authorized to exercise the delegated authority is directed to conform.”  Gundy v. 
United States, 139 S. Ct. 2116, 2123 (2019) (quotation and alterations omitted).  In 
other words, when Congress empowers an agency to regulate, it must enact “specific 
restrictions” that “meaningfully constrain[]” the agency’s exercise of authority.  Touby 
v. United States, 500 U.S. 160, 166–67 (1991).   
The Emergency Provision contains no intelligible principle if it is read to 
permit the Vaccine Mandate.  On OSHA’s reading, all viruses are “agents” or 
“substances” for purposes of the Emergency Provision, and those viruses cause a 
“grave” danger whenever they threaten serious health effects to even a small subset 
of the overall population.  Read in that manner, the Emergency Provision empowers 

31 
OSHA to demand whatever measures it thinks are necessary in response to almost 
every remotely serious germ known to mankind.  That almost-limitless grant of 
authority contains no intelligible principle.    
B. 
The States and their citizens will be irreparably harmed without 
a stay 
Without a stay, the States will sustain three irreparable injuries.  
First, without the stay, OSHA will irreparably harm the States by intruding 
on their sovereign authority to enact and enforce policies that conflict with the 
Vaccine Mandate.  See 86 Fed. Reg. at 61406.  A State “suffers a form of irreparable 
injury” any time it is prevented from “effectuating” laws “enacted by representatives 
of its people.”  Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in 
chambers); accord Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018).  The Vaccine Mandate 
inflicts this type of harm.  Its preemptive policy will interfere with the States’ 
sovereign prerogative to develop vaccine policies best suited to their populations.  See, 
e.g., 2021 Tenn. Pub. Acts, 3d Extraordinary Sess., ch. 6 (to be codified at Tenn. Code 
Ann. §§14-2-101 to -103); 2021 W. Va. Pub. Acts, 3d Extraordinary Sess., ch. 32 (to be 
codified at W. Va. Code §16-3-4b); Idaho Code §39-9003.  
Second, because the Vaccine Mandate invades the States’ constitutional 
prerogatives, it necessarily causes irreparable harm.  Government actions that 
“threaten[] or … impair[]” constitutional rights necessarily cause irreparable injury.  
Elrod v. Burns, 427 U.S. 347, 373 (1976); accord Roman Cath. Diocese of Brooklyn, 
141 S. Ct. at 67; Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).  Because 
the Constitution empowers the States alone to regulate certain matters (including 

32 
public health), and because the Vaccine Mandate illegally invades this sphere of au-
thority, the Vaccine Mandate causes irreparable injury to the States.  See Abbott, 138 
S. Ct. at 2324 (federal court, by enjoining a constitutional state law, causes irrepara-
ble injury to the State). 
Third, some States will suffer irreparable harm from unrecoverable 
compliance costs.  The Occupational Safety and Health Act permits States to adopt 
State OSHA plans, 29 U.S.C. §667(b), which apply “to all employees of public agencies 
of the State and its political subdivisions,” §667(c)(6).  States with these plans count 
as employers bound by the Mandate.  See 86 Fed. Reg. at 61462, 61506.  Thus, absent 
a stay, States with OSHA plans, just like all other covered employers, will be required 
to expend money complying with the Mandate’s terms.  See App.B-30 (Sutton, C.J., 
dissenting from the denial of initial hearing en banc).  Plus, the States must enforce 
these plans against local companies.  Because the money expended enforcing State 
OSHA Plans will be unrecoverable in light of the federal government’s sovereign 
immunity, those expenditures constitute irreparable harm.   
These are the irreparable harms that the States themselves will sustain absent 
a stay.  Many employees and private employers will sustain irreparable injuries, too.  
From the perspective of employees, the Vaccine Mandate imposes immense costs:  “an 
irreversible vaccination, uncompensated testing costs,” and a “lost job,” to name just 
a few.  App.B-30 (Sutton, C.J., dissenting from the denial of initial hearing en banc).  
Employers, for their part, face an “estimated $3 billion in compliance costs.”  Id.  And 
“small companies (with just over 100 workers)” will face difficulties “competing with 

33 
smaller companies who can attract workers disinterested in complying with the man-
date.”  Id.  Other petitioners will address these and other irreparable harms in more 
detail.  See also App.A-55–56 (Larsen, J., dissenting).  For that reason, the States will 
not belabor the issues in this brief. 
C. 
Staying the unlawful Vaccine Mandate will promote the public 
interest and will not substantially harm others  
If the Vaccine Mandate is illegal, staying it necessarily promotes the public 
interest.  The “public interest lies in a correct application of the federal constitutional 
and statutory provisions upon which the claimants” seek relief, “and ultimately … 
upon the will of the people … being effected in accordance with” law.  Coal. to Def. 
Affirmative Action v. Granholm, 473 F.3d 237, 252 (6th Cir. 2006) (Sutton, J.) 
(quotation omitted).  And the Executive Branch cannot serve the public interest when 
it acts unlawfully.  Realtors, 141 S. Ct. at 2490.  To conclude otherwise would deprive 
Congress of the power to “decide whether the public interest merits” an agency action.  
Id.  Along the same lines, enjoining an unlawful law or policy inflicts no legally cog-
nizable harm—that is why the public-interest and substantial-harm-to-others factors 
merge when the government is the defendant.  See Nken, 556 U.S. at 435.  Further, 
the Vaccine Mandate will cause harms to others and injure the public interest by 
undermining our federalist constitution.  While COVID-19 is a national problem, it 
is a problem that state “borders add tools and flexibility for fixing.”  Jeffrey S. Sutton, 
Who Decides?  States as Laboratories of Constitutional Experimentation 5 (2021).  By 
blocking the States from adopting policies best suited to their populations, the 
Mandate prevents States from experimenting with the best ways to combat COVID-

34 
19.  (“It is hard to find harm to OSHA from delay, as it waited almost two years since 
the pandemic began, and nearly a year after vaccines became publicly available, to 
issue the mandate.”  App.A-56 (Larsen, J., dissenting)). 
OSHA claims that the Vaccine Mandate will save lives.  OSHA’s ominous 
calculation—it says the stay costs precisely “77 lives and 3128 hospitalizations per 
day,” Respondents’ Emergency Motion to Dissolve Stay at 41 No. 21-7000, Doc. 69 (6th 
Cir.)—is hard to square with the agency’s sluggishness in promulgating the Mandate 
and in seeking relief from the Fifth Circuit’s stay.  (Remember, instead of immedi-
ately filing in this Court, OSHA waited eleven full days before filing in the Sixth 
Circuit a motion to dissolve the stay.)  Regardless, even if its calculation proves 
accurate, the government cannot violate the law in pursuing well-intentioned, or even 
critically important, policies.  See, e.g., Realtors, 141 S. Ct. at 2490; Boumediene v. 
Bush, 553 U.S. 723, 798 (2008); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 
579, 582 (1952).  “The laws and Constitution are designed to survive, and remain in 
force, in extraordinary times.”  Boumediene, 553 U.S. at 798.  That is why, even at 
the stay- or injunction-pending-appeal stage, this Court has refused to let 
governments violate the law in pursuit of pandemic-related policies—policies the 
government always insists will save lives.  See Realtors, 141 S. Ct. at 2490; Roman 
Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (per curiam). 
* 
“Once before, in the throes of another [far more severe] threat to the country, 
the executive branch claimed it needed to seize control of the country’s steel mills as 

35 
a ‘necessary’ measure to ‘avert a national catastrophe.’”  App.B-8 (Sutton, C.J., dis-
senting from the denial of initial hearing en banc) (quoting Youngstown Sheet & Tube, 
434 U.S. at 582).  “But that threat, like this one, did not permit the second branch to 
act without authorization from the first.”  Id.  We can have a Constitution or we can 
have a congressionally unauthorized vaccine mandate.  We cannot have both. 
II. 
In the alternative, the Court should grant certiorari before judgment 
and decide this case on an expedited basis 
Instead of simply granting a stay, the Could should treat this application as a 
petition for a writ of certiorari before judgment and hear the case on the merits.  It is 
free to do so.  See Nken v. Mukasey, 555 U.S. 1042 (2008).  And the same considera-
tions that justify a stay would justify this Court in granting certiorari before judg-
ment.  Indeed, the reasoning in the federal government’s own recent petitions for 
certiorari before judgment justify granting immediate review here.  “A petition for a 
writ of certiorari before judgment under 28 U.S.C. 2101(e) is an extraordinary rem-
edy, but the issues presented by [OSHA’s] extraordinary [standard] are ‘of such im-
perative public importance as to justify deviation from normal appellate practice and 
to require immediate determination in this Court.’”  Application to Vacate Stay of 
Preliminary Injunction at 37, United States v. Texas, No. 21A85 (U.S., Oct. 18, 2021) 
(quoting Sup. Ct. R. 11); accord Petition for Writ of Certiorari Before Judgment at 13, 
Dep’t of Commerce, No. 18-966 (U.S., Jan. 25, 2019); Petition for Writ of Certiorari 
Before Judgment at 16, Dep’t of Homeland Sec. v. Regents the University of Cal., No. 
18-587 (Nov. 5, 2018).  Further, without granting certiorari before judgment, “this 
Court would not be able to review” the “important dispute” regarding the Vaccine 

36 
Mandate’s legality “until next Term at the earliest.”  Petition for Certiorari Before 
Judgment at 16, Dep’t of Commerce, No. 18-966; accord Application to Vacate Stay at 
38, Texas, No. 21A85.   
Having persuaded the Court to grant certiorari before judgment three times in 
recent years, each time in order to resolve an exceptionally important issue before 
the end of an already-underway Supreme Court term, the federal government cannot 
fairly object to this Court’s granting a writ of certiorari before judgment in this case.  
In law as in life, “what is sauce for the goose is normally sauce for the gander.”  
Heffernan v. City of Paterson, 578 U.S. 266, 136 S. Ct. 1412, 1418 (2016). 
III. 
The Court should issue an immediate administrative stay 
The States respectfully request an immediate administrative stay to the Vac-
cine Mandate’s enforcement.  The filings in this case, even at the stay-pending-review 
stage are likely to be voluminous.  A stay will ensure that the Court has adequate 
time to review those filings while simultaneously preventing the harm that would 
otherwise occur during the interim.  The Court should therefore enter an administra-
tive stay so as to maintain the status quo ante while the Court determines whether 
to grant a stay pending review, a writ of certiorari before judgment, or both.   
Issuing an administrative stay is particularly appropriate here, given that a 
stay had already been in place for weeks before the panel abruptly lifted it.  Requiring 
businesses to take steps to implement the Mandate now pending this Court’s decision 
would have significant destabilizing effects across the economy.   
 
 

37 
CONCLUSION 
The Court should stay the Vaccine Mandate pending review, grant certiorari 
before judgment, or both.     
 
December 2021 
 
DANIEL CAMERON 
Attorney General of Kentucky 
 
VICTOR B. MADDOX 
CHRISTOPHER L. THACKER  
ALEXANDER Y. MAGERA  
JEREMY J. SYLVESTER  
LINDSEY R. KEISER  
Office of the Attorney General 
700 Capital Avenue, Suite 118 
Frankfort, Kentucky 40601 
Phone: (502) 696-5300 
Victor.Maddox@ky.gov  
 
Counsel for the Commonwealth of 
Kentucky 
 
HERBERT H. SLATERY III 
Attorney General of Tennessee 
 
CLARK L. HILDABRAND  
BRANDON J. SMITH  
Office of the Attorney General 
and Reporter 
P.O. Box. 20207 
Nashville, Tennessee 37202-0207 
Phone: (615) 532-4081 
clark.hildabrand@ag.tn.gov  
 
Counsel for the State of Tennessee 
 
 
 
 
 
 
Respectfully submitted, 
 
DAVE YOST 
Attorney General of Ohio 
 
BENJAMIN M. FLOWERS* 
* Counsel of Record 
Solicitor General 
MAY DAVIS 
JOHN ROCKENBACH 
Deputy Solicitors General 
30 E. Broad St., 17th Floor 
Columbus, OH 43215 
Phone: (614) 466-8980   
bflowers@OhioAGO.gov  
 
Counsel for the State of Ohio 
 
 
JOHN M. O’CONNOR 
Attorney General of Oklahoma 
 
MITHUN MANSINGHANI 
Solicitor General 
313 N.E. 21st St. 
Oklahoma City, OK 
Phone: (405) 521-3921 
Mithun.Mansinghani@oag.ok.gov 
 
Counsel for the State of Oklahoma 
 
 
 
 
 
 
 
 

38 
LAWRENCE G. WASDEN 
Attorney General of Idaho 
 
BRIAN KANE 
Chief Deputy Attorney General 
LESLIE M. HAYES  
MEGAN A. LARRONDO 
Deputy Attorneys General 
700 W. Jefferson Street, Ste. 210 
P.O. Box 83720 
Boise, Idaho 83720-0010 
Phone: (208) 334-2400 
brian.kane@ag.idaho.gov 
 
Counsel for the State of Idaho 
 
 
 
 
DEREK SCHMIDT  
Attorney General of Kansas 
 
JEFFREY A. CHANAY 
Chief Deputy Attorney General 
SHANNON GRAMMEL 
Deputy Solicitor General 
120 SW 10th Avenue, 2nd Floor 
Topeka, Kansas 66612 
Phone: (785) 296-2215 
jeff.chanay@ag.ks.gov 
 
Counsel for the State of Kansas 
 
 
 
 
 
 
 
 
 
 
 
 
PATRICK MORRISEY 
Attorney General of West Virginia 
 
LINDSAY S. SEE  
Solicitor General 
MICHAEL WILLIAMS (admitted in 
Michigan; practicing under supervision 
of West Virginia attorneys) 
Office of the Attorney General 
State Capitol Complex 
Bldg. 1, Room E-26 
Charleston, West Virginia 25305 
Phone: (304) 558-2021 
Lindsay.S.See@wvago.gov 
 
Counsel for the State of  
West Virginia  
 
 
LYNN FITCH 
Attorney General of Mississippi 
 
WHITNEY H. LIPSCOMB 
Deputy Attorney General 
SCOTT G. STEWART 
Solicitor General 
JUSTIN L. MATHENY 
Deputy Solicitor General 
JOHN V. COGHLAN 
Deputy Solicitor General 
Mississippi Attorney General’s Office 
P.O. Box 220 
Jackson, MS 39205 
Phone: (601) 359-3680 
scott.stewart@ago.ms.gov 
 
Counsel for the State of Mississippi 
 
 
 
 
 
 
 

39 
STEVE MARSHALL 
Attorney General of Alabama 
 
EDMUND G. LACOUR JR. 
Solicitor General 
THOMAS A. WILSON 
Deputy Solicitor General 
State of Alabama 
Office of the Attorney General 
501 Washington Ave. 
Montgomery, AL 36130 
Phone: (334) 242-7300 
Edmund.LaCour@AlabamaAG.gov 
 
Counsel for the State of Alabama 
 
 
 
 
 
TREG R. TAYLOR 
Attorney General of Alaska 
 
CHARLES E. BRASINGTON 
Assistant Attorney General 
State of Alaska 
1031 West Fourth Avenue, Suite 200 
Anchorage, AK 99501 
Phone:  (907) 269-6612 
charles.brasington@alaska.gov 
 
Counsel for the State of Alaska 
 
 
 
 
 
 
 
 
 
 
 
 
ERIC S. SCHMITT 
Attorney General of Missouri 
 
D. JOHN SAUER 
   Solicitor General 
Office of the Missouri  
Attorney General 
Supreme Court Building 
P.O. Box 899 
Jefferson City, MO 65102 
Phone: (573) 751-3321 
John.Sauer@ago.mo.gov 
 
Counsel for the State of Missouri 
 
 
 
 
 
 
AUSTIN KNUDSEN  
Attorney General of Montana 
KRISTIN HANSEN  
Lieutenant General 
DAVID M.S. DEWHIRST  
Solicitor General  
CHRISTIAN B. CORRIGAN  
Assistant Solicitor General  
Office of the Attorney General  
215 North Sanders  
P.O. Box 201401  
Helena, MT 59620-1401  
Phone:  (406) 444-2026 
David.Dewhirst@mt.gov  
 
Counsel for the State of Montana 

40 
MARK BRNOVICH 
Attorney General of Arizona 
 
BRUNN W. ROYSDEN IIII 
   SOLICITOR GENERAL 
DREW C. ENSIGN 
Deputy Solicitor General 
Arizona Attorney General’s Office 
2005 N. Central Ave. 
Phoenix, AZ 85004 
Phone: (602) 542-3333 
Drew.ensign@azag.gov 
 
Counsel for the State of Arizona 
 
 
LESLIE RUTLEDGE 
Attorney General of Arkansas 
 
NICHOLAS J. BRONNI 
Solicitor General 
VINCENT M. WAGNER 
Deputy Solicitor General 
Office of the Arkansas  
Attorney General 
323 Center Street, Suite 200 
Little Rock, Arkansas  72201 
Phone:  (501) 682-8090 
Nicholas.bronni@arkansasag.gov 
 
Counsel for the State of Arkansas 
 
 
 
 
 
 
 
 
 
 
 
 
 
DOUGLAS J. PETERSON 
Attorney General of Nebraska 
 
JAMES A. CAMPBELL  
Solicitor General  
Office of the Nebraska  
Attorney General 
2115 State Capitol     
Lincoln, Nebraska 68509                           
Phone:  (402) 471-2682 
jim.campbell@nebraska.gov 
 
Counsel for the State of Nebraska 
 
 
JOHN M. FORMELLA 
Attorney General of New Hampshire 
 
ANTHONY J. GALDIERI 
Solicitor General 
New Hampshire Department of Justice 
33 Capitol Street 
Concord, NH 03301 
Phone: (603) 271-3658 
Anthony.J.Galdieri@doj.nh.gov 
 
Counsel for the State of New Hampshire 
 
 
 
WAYNE STENEHJEM 
Attorney General of North Dakota 
 
MATTHEW A. SAGSVEEN 
Solicitor General 
Office of Attorney General 
500 North 9th Street 
Bismarck, ND 58501-4509 
Phone:  (701) 328-3640 
masagsve@nd.gov 
 
Counsel for the State of North Dakota 
 
 

41 
ASHLEY MOODY 
Attorney General of Florida 
 
HENRY C. WHITAKER 
Solicitor General 
DANIEL W. BELL 
Chief Deputy Solicitor General 
EVAN EZRAY 
JASON H. HILBORN 
Deputy Solicitors General 
JAMES H. PERCIVAL 
Deputy Attorney General of  
Legal Policy 
NATALIE P. CHRISTMAS 
Assistant Attorney General of  
Legal Policy 
State of Florida 
Office of the Attorney General 
The Capitol, Pl-01 
Tallahassee, Florida 32399-1050 
Phone:  (850) 414-3300 
Henry.Whitaker@myfloridalegal.com 
 
Counsel for the State of Florida 
 
 
 
CHRISTOPHER M. CARR 
Attorney General of Georgia 
 
STEPHEN J. PETRANY 
   Solicitor General 
ROSS W. BERGETHON 
DREW F. WALDBESER 
   Deputy Solicitors General 
State of Georgia 
Office of the Attorney General 
40 Capitol Square, S.W. 
Atlanta, Georgia, 30334 
Phone:  (404) 458-3378 
 
Counsel for the State of Georgia 
ALAN WILSON 
Attorney General of South Carolina 
 
ROBERT D. COOK 
Solicitor General 
J. EMORY SMITH, JR. 
Deputy Solicitor General 
THOMAS T. HYDRICK 
Assistant Deputy Solicitor General 
Office of the Attorney General 
Post Office Box 11549 
Columbia, South Carolina 29211 
Phone: (803) 734-3680 
thomashydrick@scag.gov 
 
Counsel for the State of South Carolina 
 
 
 
 
 
JASON R. RAVNSBORG 
South Dakota Attorney General 
 
DAVID M. MCVEY 
Assistant Attorney General 
1302 E. Highway 14, Suite 1 
Pierre, SD  57501-8501 
Phone: (605) 773-3215 
david.mcvey@state.sd.us 
 
Counsel for the State of South Dakota 
 
 
 
 
 
 
 
 
 
 
 
 

42 
THEODORE E. ROKITA 
Attorney General of Indiana 
 
THOMAS M. FISHER 
Solicitor General 
JULIA C. PAYNE 
MELINDA R. HOLMES 
Deputy Attorneys General 
Office of the Indiana Attorney General 
IGC South, Fifth Floor  
302 W. Washington Street  
Indianapolis, IN 46204  
Phone:  (317) 232-6255 
Tom.Fisher@atg.in.gov 
 
Counsel for the State of Indiana 
 
 
JEFFREY S. THOMPSON 
Solicitor General of Iowa 
 
SAMUEL P. LANGHOLZ  
Assistant Solicitor General 
Office of the Iowa Attorney General 
1305 E. Walnut Street 
Des Moines, Iowa 50319 
Phone:  (515) 281-5164 
jeffrey.thompson@ag.iowa.gov 
 
Counsel for the State of Iowa 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
KEN PAXTON  
Attorney General of Texas  
 
BRENT WEBSTER  
First Assistant Attorney General  
AARON F. REITZ  
Deputy Attorney General for  
Legal Strategy 
JUDD E. STONE II 
Solicitor General 
LANORA C. PETTIT 
Principal Deputy Solicitor General 
WILLIAM F. COLE 
RYAN S. BAASCH 
Assistant Solicitors General 
LEIF A. OLSON 
Special Counsel 
Office of the Attorney General  
P.O. Box 12548 (MC 059)  
Austin, Texas 78711-2548  
Phone: (512) 936-1700 
William.Cole@oag.texas.gov 
 
Counsel for the State of Texas 
 
 
 
 
SEAN REYES 
Attorney General 
 
MELISSA A. HOLYOAK 
Solicitor General 
Office of the Attorney General 
350 N. State Street, Suite 230 
P.O. Box 142320 
Salt Lake City, UT 84114-2320 
Phone: (385) 271-2484 
melissaholyoak@agutah.gov 
 
Counsel for the State of Utah 
 
 
 

43 
JEFF LANDRY 
Attorney General of Louisiana 
 
ELIZABETH B. MURRILL 
Solicitor General 
JOSEPH S. ST. JOHN 
Deputy Solicitor General 
JOSIAH KOLLMEYER 
Assistant Solicitor General 
MORGAN BRUNGARD 
Assistant Solicitor General 
Louisiana Department of Justice 
1885 N. Third Street 
Baton Rouge, LA 70804 
Phone: (225) 326-6766 
emurrill@ag.louisiana.gov 
 
Counsel for the State of Louisiana 
 
 
 
 
 
 
 
BRIDGET HILL 
Attorney General of Wyoming 
 
RYAN SCHELHAAS 
Chief Deputy Attorney General 
Wyoming Attorney General’s Office 
109 State Capitol 
Cheyenne, WY 82002 
Telephone: (307) 777-5786 
ryan.schelhaas@wyo.gov 
 
Counsel for the State of Wyoming

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Original

www.supremecourt.gov