Thread by @BTLawLE

Happy #scotus hearing day! Attorney Jackie Gessner here, and we are less than an hour away. Challenges to Biden's #vaccinemandates reach the Supreme Court - follow here for live updates starting at 10am ET.

#SCOTUS will hear argument on two of the Biden Admin's #vaccinemandates today: the OSHA ETS for large employers (up first at 10am ET) and the CMS rule for health care workers (immediately following at 11am ET).

The Fifth Circuit imposed an initial stay on the OSHA ETS. After cases were consolidated in the Sixth Circuit, that Court lifted the stay. #SCOTUS is deciding whether to reimpose a stay on the ETS pending further litigation.

A #SCOTUS decision on the ETS stay is significant. The challengers have to show that they are likely to prevail on the merits in the case. A ruling on the stay would reveal how the Supreme Court might ultimately rule on the merits of the ETS.

Fun fact - OSHA has issued only ten Emergency Temporary Standards ("ETS") in agency history, half of which were blocked in court.

And we're off - J. Thomas asks the first question - How do we decide what warrants the use of OSHA's Emergency Temporary Standard?

Counsel for the challengers debate the meaning of a "necessary" ETS to evade a grave harm, and J. Kagan chimes in to focus on the circumstances of the pandemic causing such harm.

J. Kagan questions, "What else should be done?" if not masking, vaccination, and testing.

Challengers raise the issue of wide-sweeping safety rules for all employers, as opposed to industry by industry and workplace by workplace rules.

Key swing voter Chief Justice Roberts questioning whether #OSHA needed to make a finely applied rule in face of a 'good enough' option.

J. Breyer finds it "unbelievable" that it would be in the public interest to impose a stay, in face of sharply increasing numbers of cases and hospitalizations.

J. Gorsuch asks why the Court should grant immediate relief in the form of a stay. Challengers cite billions in cost, lost profits, worker displacement, etc.

J. Sotomayor questions the cost of worker displacement, citing the number of workers who must miss work due to COVID.

J. Kagan calls the mandate a publicly, politically accountable policy. Says that voters have the power to say whether they like the mandate or not.

J. Kagan essentially asks the challengers, why is this up to us (the Court) to decide if this is the right policy?

J. Kavanaugh follows up on the major questions doctrine - what should we look at to say this issue is one that requires #scotus to weigh in? A: the scope of what #OSHA has done before and the widespread effects of the mandate.

Interesting point on the mandate - challengers mention that a vaccine mandate was not imposed on health care workers in the June 2021 Health Care ETS.

J. Barrett: Is the focus the scope of the ETS, not contesting that #OSHA could use this power to impose mandate in some contexts (i.e. meat packing plant or high risk workplace)? Grave danger needing more targeted focus?

Benjamin Flowers, Ohio Solicitor General, is next up for the challengers.

J. Thomas: How to define what is work-related danger? Challenger argues ETS is so broadly applied that the danger is not unique to the workplace. But quick to chime in, J. Kagan, asks what workplace has not been disrupted by COVID?

J. Kagan: Where else do people face the risk of COVID if not the workplace? A: No more so than other public places where people have to go.

J. Breyer: 750M new cases yesterday is a lot, and I don't mean to be facetious.

OH Solicitor General points out the challenge of litigating the mandates, noting that the COVID numbers cited in briefs are already outdated.

J. Sotomayor: How does the federal govt not have the power to protect workers in this case, where the pandemic affects interstate commerce, if the States have the power to do so within their own borders?

J. Thomas: Could the State of Ohio do what you say #OSHA cannot do? A: Yes, Ohio could mandate vaccinations for all persons or all workers.

OH Solicitor General: We dispute that a risk present in some workplaces grants #OSHA power to regulate for all workplaces.

J. Alito: Basis for the ETS was not the protection of the vaccinated, but the unvaccinated? A: Correct. J. Sotomayor follows up to note the risk is not just to the individual, but the risk the unvaccinated pose to other people as well.

J. Gorsuch: Question again on who has the power to decide this - Has this power been given to #OSHA to decide, or must Congress make it clearly so, as a major question?

#SCOTUS turns to the Gov't now - 40 minutes over time. US Solicitor General Elizabeth Prelogar is arguing for the Respondents.

J. Thomas: What is the problem you are getting at - employer ensuring employees are vaccinated, or employees refusing to be vaccinated? A: It's the risk of COVID in the workplace.

J. Thomas: Argument same for any infectious disease in the workplace? A: If there was a grave danger, then #OSHA is charged with doing so.

Chief Justice Roberts: Example of workplace that does not pose a grave danger? Seems to me that Govt is trying to work the waterfront. Govt described this as a "work-around," and I want to understand what you are trying to work around.

C.J. Roberts: Sounds like the sort of thing that States will be responding to, and Congress should be responding to, but Govt is going from agency-to-agency as a "work around."

J. Breyer: #OSHA could have gone industry-by-industry instead. What is Govt's response to that? A: Virus transmitted anywhere people are gathered indoors together, and employees have little control over their work environments.

Govt: While risk may be greater in some places, that does not change the fact that some risk is posed in most workplaces.

J. Alito: Does the Govt think a short administrative stay is appropriate (a few days) to allow us to consider this more closely? A: Harm has existed throughout, but Court has authority to issue brief stay, if it requires it to analyze this.

J. Sotomayor: Who should act? An agency takes a while to act, and CJ Roberts says Congress should act. How quickly could Congress act with the necessary specificity for industry-to-industry rules?

Govt: Believe Congress has already acted by allowing #OSHA to issue an ETS in the face of grave harm. No aspect of the statute required Congress to do more in these circumstances.

CJ Roberts: That was a long time ago, when Congress allowed for #OSHA to issue an ETS. Closer in time to the Spanish flu, and Congress did not have COVID in mind.

Govt: Challengers object to the scope, but #OSHA commonly issues standards that cover numerous employers.

J. Alito: Most #OSHA regs affect employees when on the job, not off the job. This affects employees all the time - unique in that way? A: Vax provides protection both while at work and outside of work; nothing in statute precludes that.

J. Alito: Not contesting vaccines are safe. But is it not true that some people will have negative effects from the vaccines/there is some risk? A: Some minimal risk to some individuals, but vaccines are safe and effective.

J. Alito: Is testing alternative viable at this time? A: Agency looked at existing testing capacity and projected out, based on number of employers expected to choose vax or test.

J. Gorsuch: Not our job to decide important public health questions, but it is our job to decide WHO should decide them. Why isn't this a major question that belongs to States and Congress?

Govt: States have police power, but Congress brought Fed Govt into role of protecting worker safety by adoption of OSH Act.

J. Gorsuch: What of the other vaccines that #OSHA has not previously regulated in this area? #OSHA has never purported to mandate flu vaccines.

Govt: Virtually everyone already required to be vaccinated by some other State mandate (polio, etc.). Flu vaccines are unique because they are seasonal, but a flu outbreak could present a similar grave harm.

J. Kavanaugh: Congress has authorized vaccines in some specific contexts (immigration, military, etc.). No vaccine statute passed by Congress to deal with this. Govt: OSH Act references possibility of vaccine reqs, and such reqs are not new in our history.

J. Barrett: Did #OSHA explain why this ETS was necessary over other possible measures? Preamble to Rule explains the evidence #OSHA gathered to demonstrate grave harm.

J. Barrett: Facts keep changing, new variants, boosters, etc. When does this emergency end/OSHA must use regular rulemaking? A: Grave danger from physically harmful agent or new hazard creates the emergency. #OSHA must conduct rulemaking process over 6 mos.

And finally, Rebuttal! Challengers say #OSHA cherry-picked the evidence re: grave harm. Emergency power is narrowly circumscribed, and #OSHA never before mandated vaccines. System does not allow agency to act unlawfully even in pursuit of desirable ends.

And that's a wrap on the ETS oral arguments, only an hour over on time. Watch for our Alerts on btlaw.com/insights/blog/… for more insights!