Thread by @stevenmazie

Watch this space: oral arguments over Biden’s policies to get more Americans vaccinated amid the worst COVID surge we’ve seen begin at 10am eastern. I’ll be covering & commenting here.

A quick preview 👇

https://twitter.com/stevenmazie/status/1479191174262972421

First up is the OSHA case, beginning with Scott Keller, former SG of Texas, who will argue against Biden's vaccine-or-test mandate for large businesses

Keller begins: the mandate covering 84m Americans will cause widespread labor shortages and is "one size fits all" when some workplaces are higher risk and others are lower risk

K: OSHA cannot commandeer businesses into becoming "de facto public health agencies"

Thomas: what constitutes "emergency use"?

K: to abate a grave danger in a temporary setting; of the 10 prior ETSs from OSHA, none included jabs or tests

Thomas: you need more than "a lot of bad things could happen" without the ETS

K: emergency power needs to be "necessary" rather than "reasonably necessary"

Thomas: govt could have had notice-and-comment period for the new rule given the extended pandemic rather than emergency (ETS)

K: yes, Judge Larsen of 6th c. said the same

Kagan: why isn't this necessary to abate a grave risk? This is by far the biggest public health emergency the US has ever faced! This is the policy that is most geared to stopping all this. There is nothing else than strongly incentivizing people strongly to stop this.

Kagan: it's an extraordinary use of emergency power in an extraordinary circumstance!

[she's animated]

Keller: we admit it's a grave danger

Kagan: I don't see this as typical situation. We all know the best way to prevent spread and dangerous illness and death is to get vaccinated. Second best is to wear masks. Why isn't that necessary?! It's what must be done.

[Kagan is kind of incredulous.]

Keller: states can do this, individual companies can do it, but not OSHA.

Roberts: you say it's not a workplace issue, it's an out-in-the-world issue. What about an assembly line of workers in close contact? That's a greater risk than outside world. OK to req vaccination there?

Keller: no

Roberts: why not? it's a special workplace problem!

Keller: then OSHA could ban all people from going into the workplace!

Roberts: but it's being more reasonable than that

Roberts: "there is some pressing urgency to addressing the problem"

Breyer: are you still really asking this Court to issue a stay stop this from taking effect? 700k new cases yesterday! That's 10x as many as when the rule was promulgated! Hospitals are filled with people who are not vaccinated! Is it really in the public interest??

Breyer: how can it conceivably be in the public interest to stop this mandate rule when the surge is so great?!

Breyer: "to me it's unbelievable" how it's in the public interest to stop this

K: states can do it; there isn't enough weekly testing right now; businesses can do it and do do it

Gorsuch going to Chevron, true to type: major q doctrine and federalism apply only if a law is ambiguous?

K: no, the doctrine would avoid non-delegation concerns too, regardless of ambiguity

Gorsuch: why should we enter a stay immediately?

K: as soon as businesses have to put out their plans, workers will quit and that displacement will ripple through the economy...lost profits, business reputation, etc.

Alito: is the Q whether this is nec to protect general public, or only unvaccinated employees?

K: it's about the unvaccinated, yes.

Sotomayor participating from her chambers, and she can't be heard! At least on the livestream.

Sotomayor's voice not audible on livestream, but it apparently is audible to the lawyers, as Keller began to respond before she interrupted him again.

Major bummer not being able to hear Justice Sotomayor speak.

Keller: OSHA has said 1-3% of employees would quit.

Soto (audible again!): now we have deaths at an unprecedented rate, and catching COVID keeps workers out of the office for an extended period of time.

Soto: some states are stopping employers from requiring vaccines or masks! why shouldn't there be a national rule to protect workers?

K: Congress would have to provide that explicitly.

Soto: I don't know how much clearer Congress can be than "do what's necessary"!

Soto: why is the human being not like a machine sparking fires if they are spewing COVID at work? Congress told OSHA to do these things!

Kagan: on the "who decides" question, there are certainly lots of balances and considerations here in terms of public policy. Should expert policymakers politically accountable to the people decide the matter, or should courts decide? Courts have no epidemiological expertise!

Keller: the idea that OSHA would do this is a very odd place to lodge such a sweeping power over the American people

[NOTE that Keller has now twice thrown opponents to the healthcare worker mandate under the bus. He said (1) there might be a better justification for a mandate for healthcare workers; and (2) OSHA isn't HHS, but HHS of course is in charge of the CMS mandate!]

Kavanaugh: what kind of rule rises to the level of the tobacco or benzene rule for major-questions doctrine (which says agencies shouldn't issue rules on qs of great economic/political significance)?

K: number of people affected matters, scope...most ETS rules are toxin challenges, not involve vaccination.

Kavanaugh has tipped his hand that he's probably not a fan of the OSHA mandate.

Barrett: hard to contest Roberts is right that *some* workplaces are appropriate for a mandate, right? This is a grave danger, right? Scope might be too wide tho?

K: right.

Barrett and Roberts seem to want to say: OSHA can mandate vaccines/tests for SOME industries with truly high-risk workplaces but not for ALL.

Still early, but this OSHA mandate seems fragile in this Court.

Keller: mask rules would be out of the question, too.

Keller done (15 mins became 40!), Benjamin Flowers of Ohio begins his arg.

Thomas: first step in OSHA's reg is to identify the sector of the workforce, right?

Flowers: yes, but OSHA applies to everything

Thomas: can a danger be SO ACUTE that it could justify what OSHA has done?

F: defining a risk so broadly is not ok - it's a danger that affects us "when we wake up in the morning."

Note that Flowers is participating in the argument from Ohio, presumably because of the pandemic!

Kagan: every workplace has been affected by this!

K: maybe, but that doesn't make it a workplace risk. It's a societal risk.

[A societal risk that created enough of a workplace risk today for Flowers that he is literally phoning it in!]

Flowers: even riskier than being in workplace to spend time with your family.
[what?!]

Kagan is not stopping: this rule exempts people who work from home or outside, but applies to people who work inside. That's where the greatest risk is!

F: many jobs might spend some time inside but....

Breyer: they did make some distinctions. Why should we issue a stay? 750 million [he means thousand] new cases yesterday!

[Flowers saying that being in the workplace for 8 hours is no riskier than spending time with your family, dropping your kids off at school or seeing a friend is truly the dodgiest thing I've heard a lawyer argue before SCOTUS in a long time.]

[well, OK, since Jonathan Mitchell a few weeks ago.]

Flowers: vaccines do not appear to be that useful for stopping spread

Soto: Omicron is as deadly and brings as much disease among the unvaccinated as Delta did! and children are in serious condition, many on ventilators! This underscores fact that without rules, we're in danger

Flowers: states could impose this.

[When pressed, the lawyers opposing the mandates revert to the federalism argument time and again.]

F: only states have the police power over public health

Soto: OSHA has power to protect the health and safety of workers!

Thomas: how efficacious is the vaccine in the workplace?

F: we do support the vaccines, but they don't prevent spread well anymore

Breyer: can OSHA regulate fire risk? why not COVID then?

F: b/c fire is specific to the workplace.

Breyer: people throw matches, cause fires outside workplace too!

F: OSHA could regulate businesses packing people together during COVID but not require vaccines or testing

Alito: q is whether there's a grave danger for unvaccinated workers, right?

F: yes

Alito: so, risk to vaccinated workers cannot be the litmus test, right?

F [who IS per @KimberlyRobinsn
an infected vaccinated worker]: yes

Soto: but the indirect risk of vaccinated people TO unvaccinated people IS part of what OSHA is combatting with this mandate, right?

F: ....

Soto: grave risk remains to people of all ages and conditions who are unvaccinated.

F: right

Kagan: 18-29yos can spread to others, right?

F: right

Kagan: danger is to other unvaccinated people, but agency's power runs out for those who aren't vaccinated?!

Flowers is talking himself in circles now, ending with "[mumble mumble] I think that's the key point there."

Kagan chuckles slightly at his totally confused response and thanks hinm.

WE ARE NOW 66 MINUTES INTO THE 60-MINUTE HEARING AND THE RESPONDENT HAS NOT BEGUN YET.

Buckle up.

The irony couldn't be more piercing: a COVID-positive lawyer (who may have contracted the virus in the workplace) is phoning in his argument against requiring vaccines or tests in the workplace to protect workers from grave danger.

70 minutes in, SG Elizabeth Prelogar begins her defense of the OSHA mandate.

Prelogar: There is explicit authorization for vaccination in the OSH Act [she's right].

Thomas: what's the problem, the employers not making sure employees are vaccinated/masked, or employees who are the problem? Who refuses to do something?

P: both. rule regulates employers to address the grave danger by mandating their workers

Thomas: you put a lot of weight on the acute crisis. same for any infectious disease?

P: no, need to develop a record - we'll see, but yes, OSHA is obligated to do this, such as blood-borne pathogen standard

Roberts brings up CMS and federal contractor mandates: are there any places where there is not a grave danger posed by COVID?

Roberts: hard to accept that this is particularized; seems govt is trying to "work across the waterfront and going agency by agency"

Roberts: This has been described as a "workaround."

What are you trying to work around?

Roberts: maybe this should be pitched as an effort across the board, rather than agency by agency. Should we consider it "a general exercise of power by the federal government" and then ask if the states may have a more proper role in this?

It's increasingly seeming that the OSHA mandate is doomed by the 6-3 Court, and the vote is probably going to be 6-3.

Kagan kinda losing her mind, tried to jump in on Roberts's hand-tipping question but demurred.

Breyer raises empirical forecast re: how many workers would quit if mandate went into effect

Justice Sotomayor tries to ask question, Justice Alito jumps in to interupt and CJ Roberts hands the mic to him.

What?!

Alito: if we put in a short adminstrative stay, will you say "horrible consequences ensue and lots of people will die"?!

P: brief stay ok

Kagan: but you really mean brief, right?

Roberts: brief compared to what?

Soto: who is in a better position to act and why?

P: Congress has already acted to authorize OSHA to act.

P: it's an express statutory provision.

Roberts: Congress acted? That was 50 years ago. It didn't have COVID in mind. It was closer to the spanish flu.

P: it's true govt has never done quite this

Roberts: more commonly exercised by the states, right? hard to argue that Congress gave free rein to agencies to enact such broad regulation

P: OSHA commonly issues wide-scope standards, to all employers. Nothing Congress couldn't have anticipated. immunization is explicitly mentioned in the law.

Thomas: is a vaccine the only way to treat covid?

P: it's the best way

Alito: maybe you're trying to "squeeze an elephant into a mousehole" - this affects employees all the time, not just when they're on the job

P: also testing as an option...

Alito: suppose the protection was provided by waving a wand over your head while at work but not outside workplace? can OSHA do that?
P: no

Alito: these vaccines have benefits and also risks, right?

P: can be true but orders of magnitude greater risk from not having vaccine

A: but there is a risk

Justice Alito has never been as Justice Alito as Justice Alito is Justice Alito-ing right now,.

Kagan: regulators think of risk-risk trade-offs all the time, right?

P: correct!

Alito: but risk to vaccinated workers? not a concern for us.

P: not all unvaccinated people are just anti-vax, some have medical or religious exemptions and OSHA wants to protect them, too, but expanding vaccinations as much as possible.

Soto: there's no vaccine mandate here, right?

P: right, test or vaccinate.

Soto: so you can assume as much risk as you like as an employee, right?

Alito just cannot stop.

Kagan on major qs doctrine: only for vague statutes to aid interpretation? or agency action falls within scope of the law (it obvs does) but we'll ignore that and say Congress has to re-up it?

[This is a very sick burn on the conservative justices who usually say they must stick to the plain meaning of the text of a law but here seem to want to ignore the plain meaning of the OSH Act.]

Gorsuch: justices should decide who should decide, a federal agency, or Congress and state governments? Doesn't it belong to the people of the states or Congress? 50 years old, this law!

Gorsuch: Congress has had a year to act on vaccine mandates and it hasn't; Biden going agency by agency to work around lack of power to issue mandate.

https://twitter.com/stevenmazie/status/1479496589978787846?s=20

Gorsuch laughs when Prelogar says this is a terrible pandemic -- what about polio or the flu, he says??

P: OSHA can regulate flu exposure in the workplace, too, if it develops an adequate record

It's remarkable watching this Supreme Court majority scratch away at federal executive power and federal legislative power via an aggrandizement of federal judicial power.

Kavanaugh: Pres. Bush gave a speech in 1995 predicting this.
wait what?
He gave no context or detail.

P: this is not "some kind of newfangled thing" - addressing the deadliest virus in the nation's history just makes sense.

Barrett asks about what justifies an ETS (emergency rule): sometimes we need a blunt instrument, but why need an ETS now?

P: OSHA explained why the vaccination push was so important in a 150-page preface to the rule

Barrett cites CJ Sutton's dissent in 6th circuit: in an extended pandemic "or endemic" there may be new jabs, boosters, etc. When does the emergency end? Two years from now, any chance Covid will be gone? When do the people get a voice in this?

Barrett: could still be an emergency two years from now??

P: don't clip its authority now, during a true emergency.

Prelogar sits down.

Scott Keller is back for rebuttal: we need a stay NOW, because the rule is set to take effect on Monday.

Keller: OSHA has never done anything like this, ever. Public interest does not permit agencies to act unlawfully, even in pursuit of good ends.

FIRST ARGUMENT DONE. HEALTHCARE MANDATE CASE COMING IN A SEC.

sorry, meant 2005

Next up: the HHS mandate for healthcare workers at facilities that take Medicare/Medicaid funds

This time, the government is up first.

Brian Fletcher from the SG's office: medical staff vaccination is to protect health and safety of patients

Fletcher: already required to be vaccinated against flu, etc.; the staffing shortage was considered by the HHS sec'y and concluded it was not a major problem

Roberts: tighter bond in the OSHA or the CMS case?

F: they apply in both; CMS has authority to protect in a particular setting

Roberts: which is a more acute danger?

F: both [he can't say anything else!]

Roberts: has the government picked the areas with greatest threat?

F: well, we are govt of limited powers and can only act where we have statutory authority to do so

Roberts: but I thought you might say healthcare context is a more pressing thing than in the workplace; if any of the three present a close connection, it would be between a health threat and the government's health care!

F takes that opening: I absolutely agree

F: I don't want to undersell everything you heard in the first case though!

[A good tightrope answer.]

Alito: did the states have clear notice that by accepting these funds, they'd be subject to vaccination rules?

F: all are on notice to the health and safety regulations, obvs not to this particular rule

Alito: so if they read the statutes, they'll understand what they are subject to?

the sarcasm is strong with the Alito

[But the really key thing is: the facilities are not suing. It's the Republican states that are suing!]

Alito: what if anything could the sec'y of HHS not do to protect health and safety?

F: it must be in the interests of patient health and safety, in line with AMA and other organizations' views

Barrett goes nuanced: maybe an omnibus rule isn't justified but more targeted provisions to specific types of facilities (eg, longterm care) WOULD be. What do I do with such a general rule?

F: all statutes give sec'y authority, even if Congress was less detailed at times

Barrett: do I need to just leave the 5th circuit injunction in place, b/c I disagree on some of the provisions?

F: no, you can lift the stay in part

Fletcher on purported threat of worker shortages: Sec'y looked into that, found that workers don't end up leaving jobs in large numbers; rate of staff turnover is 25% under normal conditions, any marginal increase is not significant

Kagan: states emphasize the timing question, could you have had notice-and-comment?

F: no, would have been 60 days, not enough time.

Side point: it's remarkable how excellent Prelogar and Fletcher, the two lawyers for the government, have been in these arguments -- esp. under the extremely compressed preparation timeframe.

Gorsuch: could CMS mandate exercise regimes, sleep habits, medicines and supplements for healthcare employees?

[big broccoli energy from 2012]

F: not really

broccoli reference brookings.edu/opinions/why-h…

Now onto Jesus Osete, arguing against the healthcare vaccine mandate on Missouri's behalf

Osete: these things are typically under state control; rural Nebraska patients will have to travel very far to get surgery w/ labor shortages

Gee, reminds me of another much less theoretical need for people to travel long distances to get constitutionally protected medical care

#Texas #SB8

Osete: the mandate will close the doors of many facilities (as one cause for state's standing to bring this case)

Roberts: statute says health and safety of patients can be protected

Osete: there's other language....

Kagan: don't you think the main task is to protect the "incredibly vulnerable patient populations"?

Osete: look at statute in context - recordkeeping important too.

Kagan: [come on!] principal job is to look after safety of Medicare/Medicaid recipients - the elderly and poor

Osete: need "exceedingly clear language" to deviate from traditional balance btw state/federal authority

Kagan: can CMS mandate handwashing, etc? that's their job, right?

Osete: sure

Kagan: that's an infection prevention measure, right?

Osete: ...

Kagan: you're ignoring the question.

Osete: ....it may well involve that....

Breyer: can they say we don't want anyone with diptheria walking into the facility?

Osete: yes, they can say that.

Breyer: so why can't they say, we don't want you walking around unvaccinated??

Kagan: the one thing we don't want you to do is to kill your patients. That seems like a pretty basic infection prevention measure.

🔥🔥🔥

Osete just repeats himself about federalism.

Federalism federalism federalism.

This Kagan-Breyer one-two punch is actually devastating and Osete is...struggling .

Breyer: thousands more people are getting this disease. I can't take that into account? That's fairly unbelievable.

Osete: yeah, well, not lawful exercises of authority nevertheless.

Breyer: let's say the rules go into effect; in two weeks, if the bad thing you're worried about happens, we'll know it. (People will quit.) Why don't we let it go ahead, and then we can draw back?

O: that will devastate local economies.

Kagan: HHS took the disruption into account in formulating the rule and countervailing things, like fewer sick, more coming back b/c they feel safer. Shouldn't HHS make that determination, rather than courts? "Seems pretty basic that providers can't be carriers of the disease."

Kagan: HHS sec'y has to balance those things. Should we decide against what the secretary has decided on balance what the health benefits are? Is that for courts to decide?

Osete: these tiny hospitals are going to be devastated. We don't see how the sec'y could have weighed things appropriately. He put a rock on one side and a feather on the other.

Sotomayor: how in the world could they make a rule requiring them to wear gloves, or isolate if sick, but not this rule? Why is this particular rule subject to us saying no?

O: Court has drawn the line state/fed.

Soto: but lots of things are state issues that are different under the spending clause - federal can dictate rules when it is providing the funding

Kav: the people who are regulated are not here complaining.
*This is a point that should have been raised a lot earlier!

O: the states have facilities

Kav: but not really, most are private. Why aren't they here complaining?

O: states represent citizens who run them

Osete's argument has been pretty repetitive and flat-footed. Ineffective. We'll see in a minute if the lawyer for Louisiana, Elizabeth Murrill, puts forward a better case.

Murrill joins via phone.

M: can govt force millions of people to get a shot, an "irrevokable" vaccine in a heavy "bureaucratic" move.
This will create chaos and eviscerate informed consent for millions of people.

Big Talk-Radio energy.

Thomas: does this pre-empt your state's interests?

M: yes, diff. for each state.

Roberts: do you agree covid no longer poses the grave danger it once did?

M: shifting sands, they change at any given time.

[ooh she gives brief, bad answers.]

M: impacts our ability to provide access to care

Roberts: you agreed to a broad provision to implement health and safety rules; why isn't that adequate notice for vaccination mandate?

M: we never predicted covid, so how could we have predicted a vaccination mandate? HHS's primary role isn't to provide health and safety, but just to give us money.

WOW SO MANY AWKWARD PAUSES HERE.

And no wonder: the Lousiana lawyer is saying that the federal Health and Human Services agency should only send states money and not protect...health or human services.

OK so Osete was mediocre. Murrill is aggressively bad.

More awkward pauses.

Alito to the rescue!

Alito: do you have standing re: healthcare workers in your state who don't want to be vaccinated?

M: yes, and we have standing via other grounds...[pivot]...this was a pretext, a workaround for Biden to induce vaccination. It's targeted at people, not facilities.

So we're nearing the end of this deflated, weird second oral argument. My sense is that the healthcare mandate is not necessarily toast. Roberts and Kavanaugh and, to some degree, Barrett, seem like possible joiners with the three liberals to remove the 5th circuit stay.

...though Barrett may be inclined to lift the stay only for certain types of facilities where the statute is clear about "health and safety" regulations.

Sotomayor reminds that the facilities themselves are not complaining, and asks why this rule is so different from issues involving other matters (how high bed can be, hand sanitizer regs) that HHS/CMS imposes without controversy.

Murrill: states are contracted with the federal government under Medicare, not the providers; vaccination is a major question, but other matters are not - they've never forced individual to submit to a medical treatment!

Soto: but we've never had anything like COVID before!

Murrill done. (Whew.)

Brian Fletcher returns for rebuttal.

F: they say vaccines are different, but no basis to ground that in the statutes; here it's a spending clause matter; anyway, vaccination requirements are common throughout the country. The whole point of the statute is to protect Medicare/Medicaid patients.

F: if you must, Justice Barrett, you can narrow the stay to those provisions with express health and safety notes. That will still protect 90+% of the patients.

F: HHS is being flexible with timing; no one will be fired immediately.

F: if measure can't go into effect, half of the country's imperiled patients will be at great risk.

Whew, that's a wrap on Three Hours and Forty Minutes of vaccine mandate SCOTUS arguments.

My takeaway: the test-or-jab rule for large businesses is probably doomed by a 6-3 vote, but the vaccine mandate for healthcare workers has a fighting chance of surviving, 5-4.

On the latter prediction, an expert agrees (and I agree Barrett could be a 6th to lift the stay in large part but not in full)

https://twitter.com/smmarotta/status/1479523187029417984?s=20

@threadreaderapp unroll pls