Thread by @chrisgeidner

Coming up in an hour —>

https://twitter.com/chrisgeidner/status/1479309769278111744

Arguments will be live streamed here: supremecourt.gov/oral_arguments…

Kagan: “Mr. Keller, I don’t understand the point. … Whatever ‘necessary’ means, whatever ‘grave’ means …” why isn’t this it?

Roberts is skeptical of NFIB’s argument.

Breyer asks: “Are you still asking us to issue a stay?” — referencing current case and hospitalization numbers. He is incredulous and getting exercised at their argument. “To me it’s unbelievable.”

Well.

OK, looks like audio is back.

Flowers basically says, arguing for Ohio, that a more discrete problem can be regulated, even if it can happen outside of the workplace (like a fire), but that a problem can become so everpresent that it can’t be regulated like this Covid workplace rule does.

This whole line of questioning from Roberts was very weird. It’s not clear to me why it matters whether Covid is seen to be a grave danger under multiple — or even many — authorizing statutes. And I didn’t hear anything from Roberts explaining why he thinks it’s concerning.

Alito and Roberts now highlighting the time that OSHA allowed for implementation as a possible reason to allow a brief administrative stay now, almost mockingly (esp Alito), but they certainly would have seen it as a negative for OSHA if it went into effect immediately in Nov.

Prelogar was having none of it when Alito tried to get her to say she’s OK with an administrative stay.

Alito insists — repeatedly — that he’s not about to go on an anti-vaxx rant before saying, “There is some risk,” to getting the vaccine. 🎪

We’re still on the OSHA case. Still have yet to start the health care workers arguments.

The OSHA case arguments are done.

We have begun the health care worker Medicaid/Medicare vaccine mandate arguments.

Again, what is Roberts doing here? This is what government does, what the executive does, when facing emergencies. It looks at its authorities & acts accordingly. (Maybe Roberts is looking back on times when the executive just didn’t care about its authorities and acted anyway?)

It took Gorsuch a Breyer-length amount of time to get that question out, which shows how convoluted and stretched out the logic underlying it is.

Missouri’s deputy attorney general, Jesus Osete, is up now.

Kagan is nonplussed, and Missouri’s Deputy AG is the one getting the brunt of it.

Kagan: The CMS with this rule is effectively saying, “The one thing you can’t do is kill your patients.”

“We don’t see how the Secretary could have weighed this properly,” Osete says, in something that sounds like a non-argument.

Sotomayor pushes on this not being “an issue of power between state and federal government,” but rather the federal government saying how it wants to give its money.

Louisiana SG Murrill is up now.

(My guess: The justices are ready for lunch.)

DOJ’s Fletcher is back up for rebuttal. We’re in the final minutes of arguments.

The HHS case is done being argued, and the Court is adjourned.

First take out of arguments: Things look rough for the OSHA mandate, although for reasons that ultimately could turn out to be irrelevant to the decision. Things look better for the HHS mandate, although the conservatives could coalesce around opposition there in conference, too.

I know that’s hedging a lot, but it is what it is. That was a lot of argument, and some of the direction of the questioning was, from my vantage point, pretty nonsensical.