OSHA Vax Mandate Legal Challenges

[Anastasis 23394]

There was a sort of discussion started about the legal basis for the OSHA mandate and the legal challenges that would play out back on the Biden thread.  Thought about putting this in the C19 thread, but figured maybe we could have one or two non-meta threads in the CR on specific topics.

 

Motion to stay the order: https://int.nyt.com/data/documenttools/ca5-texas-stay-motion/c7765ad3719f78ce/full.pdf

Courts decision: https://context-cdn.washingtonpost.com/notes/prod/default/documents/7583720b-fe63-4692-8f38-77a33709835d/note/49d73a6b-97fd-4cae-b5e0-33567884a3c5.#page=1

Government response to stay: https://int.nyt.com/data/documenttools/doj-osha-opposition-to-stay-5th-circuit/07806e34945c93ab/full.pdf

NYT article behind spoiler: https://www.nytimes.com/2021/11/08/us/politics/employer-vaccine-mandates.html

 

U.S. Urges Court Not to Block Vaccine Mandate on Employers

The Biden Justice Department filed its case before an appeals court that has temporarily halted the measure.

Spoiler

WASHINGTON — The Biden administration on Monday argued that the federal government had all the power it needed to require large employers to mandate vaccination of their workers against the Covid-19 virus — or to require those who refuse the shots to wear masks and submit to weekly testing.

In a 28-page filing before the United States Court of Appeals for the Fifth Circuit, which temporarily blocked the mandate with a nationwide stay last week, the Justice Department argued that the rule was necessary to protect workers from the pandemic and was well grounded in law.

Keeping the mandate from coming into effect “would likely cost dozens or even hundreds of lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous costs,” the Justice Department said in its filing. “That is a confluence of harms of the highest order.”

Read the documents

The Justice Department’s court filing and the challenges’ filing

The Occupational Safety and Health Administration, part of the Labor Department, issued the standard last week. The rule would force companies with at least 100 employees to require unvaccinated employees to wear masks indoors starting Dec. 5. Employees who remain unvaccinated by Jan. 4 would have to undergo weekly testing at work.

A coalition of plaintiffs — including several employers, and Republican-controlled states — have challenged the mandate in court. Their lawsuit argued that the mandate is an unlawful overreach that exceeds the authority Congress has legitimately delegated to OSHA.

The agency, several of the plaintiffs argued in a 20-page filing on Nov. 7, is an occupational safety organization with limited jurisdiction to protect workers from dangerous workplace substances like asbestos — “not a public health agency with wide-ranging authority to address communicable diseases through regulation.”

They also argued that raising concerns about workplace safety was just a “pretext” for the Biden administration’s real agenda — pressuring more Americans to get vaccinated.

Last week, a three-judge panel on the Fifth Circuit temporarily blocked the new standard, saying in a terse unsigned opinion that the challengers had given “cause to believe there are grave statutory and constitutional issues with the mandate.”

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The Fifth Circuit panel will now decide whether to lift its decision to block the mandate or make it permanent. But it is unlikely to have the final word.

Some other legal challengers to the mandate are in different appeals court circuits, and the many pending challenges are expected to be consolidated before a randomly assigned appeals court later this month.

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A Federal District Court judge in the District of Columbia separately declined on Monday to block the rule, and the issue is very likely to end up before the Supreme Court.

Part of the Justice Department’s filing pointed to the process of randomly selecting an appeals court to consolidate the cases from across the country — and the fact that the deadlines for the mandate have not yet kicked in — as a reason for the Fifth Circuit to restrain itself. But other portions of the filing served as a preview of the administration’s broader arguments.

The filing argued that OSHA had properly determined that potential exposure to the virus raised a “grave danger” to workers, in line with the standard Congress had laid out in the law. It also rejected the challengers’ contention that steps to reduce the risk of infection by a disease fell outside the sorts of workplace hazards that the agency had the power to regulate.

The Justice Department wrote that “the statutory text is unambiguous and limited to addressing grave dangers to employees in the workplace. Like many other areas of regulation, workplace-safety regulations may affect many Americans and may touch on issues about which some people disagree. But that does not automatically compel a circumscribed interpretation of a deliberately broad congressional grant.”

Karine Jean-Pierre, the principal deputy White House press secretary, said on Monday that it was routine for administration policies to face legal challenges and urged employers not to wait for the litigation to be completed before requiring their workers to get vaccinated — as some already have — or begin submitting to weekly testing.

Noting that more than 750,000 Americans have died from Covid-19, with about 1,300 new deaths each day in the United States, she argued that the mandate was about protecting workers from the risk that they will be infected by the coronavirus.

“This is an authority that we believe the Department of Labor has — we are very confident about it,” she said, adding: “This is about keeping people safe in the workplace, and it’s critical and it’s important to do.”

The White House announced in September that the federal government would issue and encourage a series of vaccination mandates, including ones for federal workers, employees of federal contractors, and recipients of federal funding.

“We’ve been patient,” Mr. Biden said at the time, referring to some 80 million Americans who have refused to get vaccinated, increasing the risk that the coronavirus finds new hosts to keep spreading through. “But our patience is wearing thin. And your refusal has cost all of us.”

The litigation focuses on the part of Mr. Biden’s mandate plan that applies to companies that employ more than 100 workers. It relies on an emergency provision of the Occupational Safety and Health Act of 1970, which empowers the federal government to regulate workplaces to protect worker safety.

At Mr. Biden’s direction, OSHA developed an “emergency temporary standard” based on a claim that workers face a “grave danger” at work from the virus and that mandating vaccinations or frequent testing is a necessary and feasible way for employers to reduce the danger of serious illness, hospitalization or death.

The rule makes an exception for employees who do not come into close contact with other people at work, such as those who work at home or exclusively outdoors.

The agency published the standard on Nov. 4, and the plaintiffs filed the lawsuit the next day.

If the courts ultimately allow the rule to go into effect, OSHA would be empowered to collect reports of violations and send inspectors to examine workplaces, backed by fines that start at $13,650 per violation and can escalate to up to $136,500 per violation for willful or repeated offenses.

In June, OSHA used the same authority to impose an emergency rule targeting health care employers. It required them to provide workers with protective equipment like masks and to ensure adequate ventilation and distancing, among other measures. But the agency has not previously used that power to impose a broad vaccine mandate on all large employers.

 

Edited November 9, 2021 by Anastasis

[PenelopeWitherspoon 19093]

Of course it was the 5th Circuit and Texas and Ken Paxton have been leading the charge.  

I hope anyone still in Texas enjoys living in a third world shithole, because that is what Texas has become.

[The Dog 43807]

My understanding is they have a case against the OSHA stuff. It's not the federal government's place to issue public health mandates. As much as I disagree with Abbot and co going completely kooky on vaccines it is their place to determine what can be required as long as it's not something touched by federal funds. 

Letting this stand would be a pretty big shift in how public health is handled here, and I'm not sure over the long term it's really that good. 

[JimmyJames 12271]

Haven’t really looked into it but I did read that chief judge Edith Jones authored the stay, which means it’s probably wrong. 

[JimmyJames 12271]

Just skimming through it it looks like once again the fifth circuit is full of shit. The DOL isn’t mandating a vaccine to the entire public, its regulating the workplace by mandating one which congress has given them broad power to do. This is also especially true given prior US Supreme Court decisions on vaccine mandates in the context of other issues. It’s pure political bullshit and yet another example of how the republicans are destroying the reputation of the courts by overtly politicizing it. 

[Macanudo 12928]

40 minutes ago, PenelopeWitherspoon said:

Of course it was the 5th Circuit and Texas and Ken Paxton have been leading the charge.  

I hope anyone still in Texas enjoys living in a third world shithole, because that is what Texas has become.

Um, let's be fair, this whole country is a shithole.

[David Dennison 18660]

34 minutes ago, The Dog said:

My understanding is they have a case against the OSHA stuff. It's not the federal government's place to issue public health mandates. As much as I disagree with Abbot and co going completely kooky on vaccines it is their place to determine what can be required as long as it's not something touched by federal funds. 

Letting this stand would be a pretty big shift in how public health is handled here, and I'm not sure over the long term it's really that good. 

Yes, it is.

[Pato del Muerto 52342]

So the position is that the occupational safety and health administration  can’t issue safety and health mandates to employers?  No hazard signs, no high fall tethering, no confined space rules, no first aid availability, nothing?

[Fudge Nuggets 19151]

2 minutes ago, Pato del Muerto said:

No hazard signs, no high fall tethering, no confined space rules, no first aid availability, nothing?

Why do you hate freedom?

[wildcat09 29258]

The 5th Circuit's opinions are worth less than dogshit.

[mchookem 16224]

Quote

They also argued that raising concerns about workplace safety was just a “pretext” for the Biden administration’s real agenda — pressuring more Americans to get vaccinated.

 

[Pato del Muerto 52342]

26 minutes ago, Fudge Nuggets said:

Why do you hate freedom?

Actually now I pause and reflect, this is exactly right. Workplace safety is something that unions had to fight for because big business didn’t want to spend the money or lose the productivity from working safely.  It is completely on brand. 

[Neonmoon 38127]

Commerce clause gonna commerce clause

[TwiceHorn 31283]

Pretext.  Fuck.

 

We only have massive supply chain problems because of factory shutdowns and widespread factory and transport worker unavailablity due to the unchecked spread of Covid-19, domestically and abroad.

There's no worker safety issue here at all, none whatsoever.

 

[David Dennison 18660]

3 minutes ago, Neonmoon said:

Commerce clause gonna commerce clause

DING DING DING DING DING DING DING!!!! We have a winner!

[elfenix 34171]

1 hour ago, JimmyJames said:

Haven’t really looked into it but I did read that chief judge Edith Jones authored the stay, which means it’s probably wrong. 

nominated by reagan in 1985.  she's literally been on the 5th circuit for over half of her life. 

[tx 3 putt 76400]

All those Chem plants / Refineries that proudly display being osha star/vip sites, they’re all going to play along 

[TwiceHorn 31283]

1 hour ago, JimmyJames said:

Haven’t really looked into it but I did read that chief judge Edith Jones authored the stay, which means it’s probably wrong. 

She's no longer Chief Judge.  Priscilla is.  Not sure who's worse, though.  Priscilla.  Edith.  Aethne?

And, taking a page from the supremes, they're doing this shit without opinion on a shadow docket.

[JimmyJames 12271]

5 minutes ago, TwiceHorn said:

She's no longer Chief Judge.  Priscilla is.  Not sure who's worse, though.  Priscilla.  Edith.  Aethne?

And, taking a page from the supremes, they're doing this shit without opinion on a shadow docket.

Oh yeah. Forgot it switched. 
 

I think Jones is the worst. Been there the longest so her “I just don’t give a shit anymore” level is the highest. 
 

Yep it’s just like the abortion ruling. Complete hacks. 

[JimmyJames 12271]

30 minutes ago, elfenix said:

nominated by reagan in 1985.  she's literally been on the 5th circuit for over half of her life. 

Yep. And 35 years from now all those white male trump nominated judges will still be on the bench, only much more jaded by then. 

[JimmyJames 12271]

43 minutes ago, TwiceHorn said:

Pretext.  Fuck.

 

We only have massive supply chain problems because of factory shutdowns and widespread factory and transport worker unavailablity due to the unchecked spread of Covid-19, domestically and abroad.

There's no worker safety issue here at all, none whatsoever.

 

Same judges. White supervisor fires his black employee saying “you’re late n_gger.” = no evidence of pretext.  Stray remark.

Its almost comical at this point. 

 

 

[High Plains Drifter 10977]

 

so, SCQTUS will rubber stamp any sewage coming from the 5th circuit, right? Or am I being too cynical*?

 

*(is such a thing even possible?)

 

[WBT 20422]

1 hour ago, Pato del Muerto said:

So the position is that the occupational safety and health administration  can’t issue safety and health mandates to employers?  No hazard signs, no high fall tethering, no confined space rules, no first aid availability, nothing?

Won't somebody think of the STAC cards?

[EE2B 1561]

All those Chem plants / Refineries that proudly display being osha star/vip sites, they’re all going to play along 

This will be actually quite interesting here. We are a union mill, so I can’t wait to see what’s required of the unvaccinated union employees versus the unvaccinated salary folks. I could see this turning into a shit show. That plus the cost of testing 300 unvaccinated workers is going to be a cluster. I’ve already heard unvaccinated salary folks so they will quit. My guess is they get tested or vaccinated.

[tx 3 putt 76400]

27 minutes ago, WBT said:

Won't somebody think of the STAC cards?

my jsa would be 50% Covid prevention !

[tantric superman 4667]

3 hours ago, PenelopeWitherspoon said:

Of course it was the 5th Circuit and Texas and Ken Paxton have been leading the charge.  

I hope anyone still in Texas enjoys living in a third world shithole, because that is what Texas has become.

They [still] got a lot of nice girls, ah!

 

Have mercy!

[tantric superman 4667]

5th Circuit - if it is a rule that can be applied to increase safety outside of the workplace, it is therefore suspect if it can increase safety in the workplace.

[Satoshi 129]

not a lawyer, obv. Need a fact check here. 
 

Quoted passage from this column. 
 

 

 

When it blocked the order, the Fifth Circuit Court of Appeals recorded that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” As, of course, there must be. The Biden administration issued the mandate via the Occupational Safety and Health Administration (OSHA), a federal agency whose sole power under the law is to protect employees from workplace hazards. There is nothing in the Constitution’s Commerce Clause that justifies OSHA’s adoption of generalized police powers, and nothing in its charter that permits it to move from regulating toxic substances at employees’ places of work to regulating any hazard that employees might plausibly encounter during the course of their everyday lives. In a brazen attempt to circumvent the statutorily mandatory feedback period, Biden utilized an “emergency temporary standard” (ETS) as his vehicle. But this, too, seems inappropriate. No ETS in American history has ever been this broad, and the last one that was issued — a 1983 attempt to speed up OSHA’s regulation of asbestos — was struck down by the courts.

[Incredulity 11555]

He is absolutely doing that, and has said as much regarding eviction moratorium.

 

ArglgdfffsdGgffdhgss!!!!🖕🏻🖕🏻🖕🏻/Surly Leftists 

[TwiceHorn 31283]

After having looked at it some, despite the facial breadth of the OSHA Act that would seem to permit this, these ETS orders have not fared well in court in the past, for a myriad of reasons.

It's a matter of picking the right agency to order this, and it looks like OSHA isn't the right one.

I'm afraid this is probably going down, and not directly as a result of the shitbags on the 5th Circuit.  Or the Supreme Court.  There's about 50 years of precedent working against it, especially the "ETS" nature of the order that sidesteps the normal rulemaking process.  Courts are usually hostile to those.

[washparkhorn 9935]

31 minutes ago, TwiceHorn said:

There's about 50 years of precedent working against it, especially the "ETS" nature of the order that sidesteps the normal rulemaking process.  Courts are usually hostile to those.

I am not sure they get to that question. The four months to implement an emergency mandate justification doesn't quite pass the smell test (even though it is probably rational given the strong passion and feelings of anti-vaxxers/trumpers and the propensity for violence).  Emergency means emergency in OSHA world.

OSHA already has the ability to shut down unsafe work environments if the worksites are imminently dangerous. That may be a better avenue for OSHA/Biden.

Edited November 10, 2021 by washparkhorn

[Anastasis 23394]

30 minutes ago, TwiceHorn said:

After having looked at it some, despite the facial breadth of the OSHA Act that would seem to permit this, these ETS orders have not fared well in court in the past, for a myriad of reasons.

It's a matter of picking the right agency to order this, and it looks like OSHA isn't the right one.

I'm afraid this is probably going down, and not directly as a result of the shitbags on the 5th Circuit.  Or the Supreme Court.  There's about 50 years of precedent working against it, especially the "ETS" nature of the order that sidesteps the normal rulemaking process.  Courts are usually hostile to those.

The actual numbers were cited in the discussion in the Biden thread, but the success rate of these orders upon challenge is pretty poor, IIRC.

Here is the data point: https://news.bloomberglaw.com/daily-labor-report/lawsuits-fighting-osha-covid-19-vaccine-standard-may-not-matter

Cozen O’Connor partner James Sullivan writes that six of just nine emergency temporary standards issued by OSHA since the 1970s have been challenged in courts, and only one has been upheld.

Edited November 10, 2021 by Anastasis

[Anastasis 23394]

Seems to me that, at least based on my understanding of the SCOTUS precedents involved, the least legally challenging way to implement vax mandates is to do it at the state level. 

[JimmyJames 12271]

46 minutes ago, TwiceHorn said:

After having looked at it some, despite the facial breadth of the OSHA Act that would seem to permit this, these ETS orders have not fared well in court in the past, for a myriad of reasons.

It's a matter of picking the right agency to order this, and it looks like OSHA isn't the right one.

I'm afraid this is probably going down, and not directly as a result of the shitbags on the 5th Circuit.  Or the Supreme Court.  There's about 50 years of precedent working against it, especially the "ETS" nature of the order that sidesteps the normal rulemaking process.  Courts are usually hostile to those.

Irregardless, the courts are getting dangerously close to a situation where the executive branch just ignores the courts, who have no real enforcement authority. Is this issue really worth it to the courts?

[washparkhorn 9935]

51 minutes ago, Anastasis said:

Seems to me that, at least based on my understanding of the SCOTUS precedents involved, the least legally challenging way to implement vax mandates is to do it at the state level. 

For workplace safety, the Supremacy Clause of the Constitution requires States to yield to OSHA (the proverbial 400-pound gorilla in the room). No getting around that. But you have a good point of action on the state-level.

Spoiler

I know Texas gutted it's work comp system, but that is an avenue for state-level action in most states (not Texas).

Most states have private insurers along with an public/quasi-public insurer of last resort competing in a market for premium dollars. Those market forces can provide accurate data and risk assessment, along with proper allocation of negative externalities. 

If an employer want to take on this risk, it will cost X for insurers to assume all or a portion of the risk. Insurers will hedge that risk. Insurers will demand vaccines as cost-effective risk prevention or demand premiums that price in the much of the exposure to the risk. 

That's modern capitalism and finance in the United States. It sometimes work well for relatively accurate price discovery (yay Adam Smith, Progressive Capitalist). 

What are we trying to accomplish with these vaccine mandates? People are on their own when it comes to this.

Here is the message from capitalism:

Wanna have a better chance of dying, stay unvaccinated. That's the odds. Feeling lucky?

the markets work well to rein in chaos. Just let those markets do their thing. It costs less to have a vaccinated populace. There are two ways to achieve a high vaccination rate.  Can't save everyone, I suppose. 

Edited November 10, 2021 by washparkhorn
Is it a grift to follow the trump carnival around with a portable worship oasis so we can save some of their souls with one quick and easy suggested donation? Seems blasphemous, but non-judgmental. If it's free, they won't want it.

[Satoshi 129]

8 hours ago, JimmyJames said:

Irregardless, the courts are getting dangerously close to a situation where the executive branch just ignores the courts, who have no real enforcement authority. Is this issue really worth it to the courts?

How do you feel about the executive branch ignoring checks and balances?

8 hours ago, TwiceHorn said:

After having looked at it some, despite the facial breadth of the OSHA Act that would seem to permit this, these ETS orders have not fared well in court in the past, for a myriad of reasons.

It's a matter of picking the right agency to order this, and it looks like OSHA isn't the right one.

I'm afraid this is probably going down, and not directly as a result of the shitbags on the 5th Circuit.  Or the Supreme Court.  There's about 50 years of precedent working against it, especially the "ETS" nature of the order that sidesteps the normal rulemaking process.  Courts are usually hostile to those.

This makes sense and explains why the administration is essentially telling businesses to proceed. Much like the eviction moratorium they know it’s doomed so the juice is going to come from the interim period where it’s in limbo. 

[WBT 20422]

10 hours ago, JimmyJames said:

Irregardless, the courts are getting dangerously close to a situation where the executive branch just ignores the courts, who have no real enforcement authority. Is this issue really worth it to the courts?

But norms?

[elfenix 34171]

10 hours ago, Anastasis said:

Seems to me that, at least based on my understanding of the SCOTUS precedents involved, the least legally challenging way to implement vax mandates is to do it at the state level. 

the states retain police powers for health and welfare under the 10th amendment.  it's unquestionable that they can mandate vaccinations. 

i do kinda chuckle looking at the US code which has a huge number of volumes for health and welfare when the federal government has no direct powers in that area. 

[tantric superman 4667]

I think in retrospect Biden would have done best focusing on the federal contractor executive order. 

The private sector OSHA order should have just provided information to employees about vaccinations and mask rules.

The most important EO or EEOC guidance would have been that termination of employees who refused to get the vaccine by private sector employees would not be deemed to be a violation of any federal law (outside of ADA or religious accommodation).

[Anastasis 23394]

IF stretching the bounds was the play, Biden should have just gone big with the first punch. Some of the CR lawyers were whining about separation of powers, while missing the obvious right under their nose. Same same. 

 

https://www.reuters.com/world/us/federal-appeals-court-affirms-stay-biden-vaccine-mandate-2021-11-12/

Nov 12 (Reuters) - A U.S. appeals court on Friday upheld its decision to put on hold an order by President Joe Biden for companies with 100 workers or more to require COVID-19 vaccines, rejecting a challenge by his administration.

Edited November 13, 2021 by Anastasis

[Anastasis 23394]

On 11/10/2021 at 9:06 AM, tantric superman said:

I think in retrospect Biden would have done best focusing on the federal contractor executive order. 

Makes too much sense. 

[DanRydell 799]

Fifth Circuit opinions are basically a Dan Bongino Facebook comment section at this point.

[Anastasis 23394]

Here’s the order from Friday. 
 

https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf

[TwiceHorn 31283]

44 minutes ago, Anastasis said:

Here’s the order from Friday. 
 

https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf

Yeah, that's pretty representative of all the problems with OSHA actions, especially the ETSs.  

As I said, I skimmed the opinions on the half-dozen or so other ETS cases, and, like a lot of "emergency rulemaking," they don't fare well.

We had previously concluded that vaccine mandates had fared well in court, but the key to those is that they were state level.  And, as has been observed in this thread, that type of police power is generally reserved to the states.

[Johnny Sack 8397]

On 11/10/2021 at 9:06 AM, tantric superman said:

I think in retrospect Biden would have done best focusing on the federal contractor executive order. 

The private sector OSHA order should have just provided information to employees about vaccinations and mask rules.

The most important EO or EEOC guidance would have been that termination of employees who refused to get the vaccine by private sector employees would not be deemed to be a violation of any federal law (outside of ADA or religious accommodation).

The contractor law is toothless as written.  It’s also ridiculous in many aspects, like requiring vaccines for remote workers who never come into the workplace.  

[Satoshi 129]

 

[Bullneck 18987]

7 minutes ago, Satoshi said:

 

Never seen people arguing so hard to get people killed.  Solid efforts there.

My first impulse is to say, "let the morons die" but in the meantime they are going to be incubating next year's variant.  So shoot 'em all up with the vaccine. 

(Got my third Pfizer shot yesterday in NJ.)

Edited November 13, 2021 by Bullneck

[Telegraph_it 3354]

8 minutes ago, Satoshi said:

 

 

[JimmyJames 12271]

14 hours ago, Anastasis said:

IF stretching the bounds was the play, Biden should have just gone big with the first punch. Some of the CR lawyers were whining about separation of powers, while missing the obvious right under their nose. Same same. 

 

https://www.reuters.com/world/us/federal-appeals-court-affirms-stay-biden-vaccine-mandate-2021-11-12/

Nov 12 (Reuters) - A U.S. appeals court on Friday upheld its decision to put on hold an order by President Joe Biden for companies with 100 workers or more to require COVID-19 vaccines, rejecting a challenge by his administration.

Someone is not very familiar with the Fifth circuit and how it operates. 
 

Basically the court held that Covid is not  an exceptional circumstance justifying an emergency order. Ok.  
 

The rest is just pure idiological bullshit used to justify that conclusion from a radical activist court which is pretty rich coming from the “I just call balls and strikes” team. 

I don’t advocate for a constitutional crises but radical activists judges issuing nationwide injunctions seem to want one. 
 

 

Edited November 13, 2021 by JimmyJames

[JimmyJames 12271]

2 hours ago, TwiceHorn said:

Yeah, that's pretty representative of all the problems with OSHA actions, especially the ETSs.  

As I said, I skimmed the opinions on the half-dozen or so other ETS cases, and, like a lot of "emergency rulemaking," they don't fare well.

We had previously concluded that vaccine mandates had fared well in court, but the key to those is that they were state level.  And, as has been observed in this thread, that type of police power is generally reserved to the states.

I mean if Covid is not an exceptional circumstance justifying an emergency order then what would?