Thread by @smmarotta

Good morning and welcome to my live tweet of the #SCOTUS #VaccineMandate oral arguments, brought to you by @ahahospitals.

We're nine minutes out from the Court taking the bench. First up today will be arguments on whether to stay the #OSHA vaccinate-or-test mandate. /1

All of the justices except Sonia Sotomayor will be in the courtroom for oral argument today. Justice Sotomayor, who is diabetic, will be participating from her Chambers by phone. Also, Ohio Solicitor General Ben Flowers will argue by phone as he tested positive for COVID. /2

We'll hear first from Scott Keller, who will argue for a coalition of businesses led by @NFIB. Then is Flowers for a coalition of States led by Ohio. And arguing for the government and in defense of OSHA will be U.S. Solicitor General Elizabeth Prelogar. /3

Remember from my preview post that although partisans on both sides will cheer questions from justices on "their" side, we are primarily worried about the "median" justices: The Chief Justice, Justice Kavanaugh, and Justice Barrett. Listen closely when they speak. /4

One logistical note: I'll have separate threads for the #OSHA and #CMS oral arguments to make it easier for those looking for one analysis or the other.

Now we wait for Supreme Court Marshal Gail Curley to cry the court with the traditional "Oyez, oyez, oyez." /5

There's the buzzer and the gavel. The Chief Justice announces that Justice Sotomayor and Mr. Flowers are participating remotely. Mr. Keller is first up and will have a minute to speak uninterrupted. /6

Keller focuses on the #OSHA's effect on the national economy, including the Postal Service's request for an exemption, and the unprecedented nature of this mandate, noting that OSHA has never imposed a nationwide vaccine mandate before. /7

As is traditional, Justice Thomas asks the first question. He asks when the statutory standard for an emergency standard is met and gives Keller some room to run in answering that it must be a nationwide threat specific to workplaces. /8

As expected, Justice Thomas' questions signal that he thinks that an emergency standard is unnecessary and that public participation should have been provided on the #OSHA mandate before it was issued. /9

Justice Kagan jumps in. Asks why the mandate wasn't necessary to abate a great risk given that this is "the greatest public health danger this country has faced in the last century." Says OSHA's policy is "most geared" to stopping the pandemic and nothing would do better. /10

Kagan's questions are, essentially, whatever the statutory terms' outer limits are, how can COVID NOT be a public-health emergency warranting an emergency vaccine-mandate response? Best way to prevent harm is to get people vaccinated. /11

Kagan says the "agency has done everything except stand on its head" to show that a mandatory vaccination policy is the best way to prevent harm in the workplace. Keller says that States or individual workplaces can mandate vaccines, but not OSHA. /12

The Chief Justice, a key vote, asks Keller how "workplace" a hazard must be as opposed to "in the world" before OSHA can regulate it. Raises example of workers standing next to each other on an assembly line and asks whether OSHA can mandate vaccination. /13

Keller says that vaccination can't be mandated, but maybe barriers between workers can be. The Chief is unimpressed, saying that vaccination is clearly superior. /14

Chief says there is "some pressing urgency" to addressing the problem of COVID. Keller is on his heels, trying to bring it back to saying that this is an "economy-wide" mandate as opposed to an "industry-by-industry" response. /15

Keller throws the #CMS vaccine mandate challengers under the bus, suggesting that maybe a healthcare mandate might be justified, but not an economy-wide #OSHA mandate. /16

Justice Breyer is now talking, making several points, but noting that whether to grant an emergency stay is a different question than the overall merits and suggesting the discretion the Court has on a stay militates against granting one. /17

Breyer asks how it could "conceivably be in the public interest" given hospitalization rates to grant an emergency stay. A factor to consider in granting a stay is "where the public interest lies." Says it is "unbelievable" that a stay could be appropriate. /18

Safe to say that Justice Breyer is not voting for the challengers on the stay question. /19

We are now going justice-by-justice as we do at the end of each advocate's oral argument. Justice Gorsuch is up and he is asking about the "major questions doctrine" we've talked about on the blog. /20

Gorsuch is asking whether the major questions doctrine comes in only when the statute is ambiguous on its face. Keller says that it comes in even before a finding of ambiguity, but that the OSH Act is ambiguous. /21

Gorsuch also asks why a stay is appropriate. Keller argues that testing is unavailable to comply with the mandate and that workers will quit, throwing the economy into disarray, if the mandate is allowed to go into effect. /22

Justice Alito asks whether the question is whether the #OSHA mandate is necessary to protect the public or to protect unvaccinated workers who have chosen to be unvaccinated. Keller says the latter. /23

We're having audio issues on the livestream. It seems that people in the courtroom can hear Justice Sotomayor, but we can't. /24

We're back and Keller is speaking, but the context isn't clear. Keller is talking about 1-3% of workers will quit. We can hear Justice Sotomayor now, at least, who says that catching COVID keeps people out of the workplace. /25

I've only heard a few seconds of Justice Sotomayor going after Keller, but, yeah, you can put her in the Justice Breyer camp. She is not voting for a stay. /26

LOGISTICAL NOTE: I've argued at #SCOTUS by phone and their staff is top notch. That had to be the worst two minutes of their lives. They go above and beyond on these arguments. /27

Sotomayor asks how a vaccine mandate is different than telling workplaces "if sparks are flying, wear a mask." Keller argues the sparks are particular to the workplace whereas COVID is not. /28

Justice Kagan is up. Agrees that the question is "who decides" and says "respectfully, I think it has a different answer." So, yes, we have three votes against a stay. As expected. /29

Kagan emphasizes that agency is politically accountable through the President and has expertise and courts do not. Justice Kagan was a presidential-powers scholar before public service so this accountability theme is in her wheelhouse. /30

Justice Kavanaugh says he thinks the "who decides" question "gets to the heart of this." Says that critique of the major questions canon is how you decide a question is "major" enough. Asks Keller how court decides what is a "major" question. /31

Keller says number of workers covered, economic scope, and breadth all show that this is a "major" question. Also says this is a question of significant debate. /32

Kavanaugh asks what Court does if text is unambiguous but doesn't specifically speak to the question at issue. I'm not exactly sure what Keller's answer is. He seems to be saying just this law is difference. /33

Kavanaugh asks whether OSHA could issue a vaccine mandate through its general power as opposed to its emergency powers. Keller says no. /34

Justice Barrett says that Keller would be "hard pressed" to say that there aren't some workplaces where there is an increased risk from COVID than generally in the world, like meatpackers. Asks whether a more-targeted rule might be okay. /35

(She is asking Keller whether she thinks a more-targeted rule would be okay. She hasn't tipped her hand on whether she thinks this rule is too-broad.) Keller says a more-targeted rule might be okay, but this rule is far too broad. /36

Barrett says that "you're not disputing that if we're talking about healthcare workers" that OSHA could act. Suggests she might be in favor of the #CMS mandate coming next. And Keller keeps conceding away the CMS challengers' case. /37

Barrett asks whether Keller would contest a masking-and-testing regime. He says yes. She asks whether he would contest just a masking regime. He says yes. He says any economy-wide rule is improper. /38

Now Ben Flowers for Ohio is up. /39

Barrett's questions seem to suggest that she may think the #OSHA rule is too broad but a more-tailored rule may be okay. Also suggests that (as we talked on the blog) the Court may rule differently on the #OSHA and #CMS mandates. /40

Justice Thomas has the first question for Ben Flowers, who sounds like he is talking through a drive-thru microphone. Thomas asks if a danger in society can be so acute that it is brought into the workplace and can be regulated by presence there. /41

Flowers argues that OSHA can regulate only if the employer has done or failed to do something that creates the risk. Says that the risk of COVID is prevalent in the word, a restaurants and sporting events. Seems to also concede the meatpacking hypothetical. /42

Kagan asks whether there is any workplace that hasn't been transformed by COVID, except a few, like outdoors landscaping. Flowers says that workplaces have changed, but the risk isn't coming from the workplace and isn't a workplace risk. /43

Kagan pointing out that with leisure activities, you can decide whether to face the risk. But at work, you can't decide whether to face the risk with co-workers who may be unvaccinated and irresponsible. /44

Kagan and Flowers keep going back-and-forth whether the workplace is particularly risky. But she is a sure vote for the mandate. Breyer is now here, saying his "law clerks have been busy beavers" working on this case. /45

Breyer is back to saying that given the number of cases, he finds it "unbelievable" to say that stopping vaccinations is in the public interest. /46

Listing off pages from the Federal Register, Breyer emphasizes that OSHA considered the risk of employees quitting and weighed them and came out in favor of vaccinate-or-test. Why not defer to the agency's expertise in weighing that risk? /47

Keller got a lot of heat for his argument on social-media, but he so far has been more-effective than Flowers, who is being hampered by arguing by phone because of his positive COVID test. /48

Justice Sotomayor (which working audio!) confronts Flowers with hospitalization and case rates, asking why workplace rules are not necessary to prevent these harms. Says goal is to keep businesses running because sick workers can't work. /49

Sotomayor asks why States have power to mandate vaccines or testing but not OSHA. Flowers says that federal government has no police power. Sotomayor's rejoinder is that OSHA's constitutionality has been upheld. /50

Chief moves us to sequential questioning. Thomas asks Flowers to say how efficacious in preventing infection. Flowers emphasizes he is pro-vaccine, but that vaccines are not effective in preventing infection. Concedes, however, that COVID is serious. /51

Thomas asks whether Ohio could impose OSHA's rule. Flowers says that Ohio could impose vaccinations not just for workers, but all residents. Says that agencies and groups other than OSHA are trying to stop pandemic. /52

Thomas says stopping COVID is "not all or nothing," so OSHA mandate isn't only way to stop the pandemic.

Breyer now asking whether OSHA can regulate fire. Flowers says yes, but that is workplace-specific hazard. /53

Alito asking Flowers whether OSHA is essentially protecting those who have said they don't want to be protected by not being vaccinated. Flowers says that's right. /54

Sotomayor follows up on that, saying it's not just the risk to unvaccinated people, but the risk that the unvaccinated pose to the vaccinated. Flowers says that OSHA has conceded that the vaccinated are not at risk and it has to be consistent with itself. /55

Justice Kagan takes issues with Justice Alito's framing, saying that just because someone doesn't want to be protected doesn't mean that OSHA can't protect them anyway. /56

Justice Gorsuch comes back to "who decides." Sees it that States have broad police powers, Congress has certain powers, and agencies do what Congress tells them to do. Says major-questions doctrine sorts through this and suggests agency doesn't have this power. /57

Flowers says major-questions can be "constitutional avoidance" doctrine, coming into play when an agency that claims powers that allow it to regulate "coast to coast." Pretty much argues that Congress doesn't have power to require vaccination or testing, either. /58

Kavanaugh asks Flowers to explain the value of Congress giving express powers to regulate in the midst of an emergency. Justice Kavanaugh suggesting that he might join position that Congress has to be the one to authorize vaccine mandate. /59

U.S. Solicitor General Elizabeth Prelogar, who, full disclosure, is a former colleague of mine, is now up. Argues that vaccine or test is "highly effective" to "stop this deadly disease at work." /60

Thomas asks Prelogar whether the problem OSHA is regulating is the problem of the employer not requiring vaccination or testing or the employees not vaccinating or testing. Prelogar says it is about addressing the "grave danger" by requiring employers to target danger. /61

Thomas asks whether argument is the same for any infectious disease, or whether COVID is unique. Prelogar says it depends on the facts. If standard is met, then yes, OSHA can regulate, such as blood-borne pathogens. /62

Chief Justice says that government is saying COVID is a "grave danger" under all of its statutory authorities. Says that this isn't a OSHA-specific regulation, or CMS-specific regulation, or contractor-specific regulation, but rather a "workaround" for mass vaccination. /63

Prelogar turns it around, saying that just because CVOID is a danger everywhere doesn't mean OSHA's powers are less. Roberts replies that this should be viewed as an attempt to "cover the waterfront" and a general attempt to regulate that lies with Congress and the States. /64

The Chief's questions to Prelogar seem to focus on the issue of over-breadth, worried that OSHA is not issuing workplace regulations, but is rather one part of a broad attempt to vaccinate all Americans. Roberts says that broad attempt should come from Congress and States. /65

Dispute between Prelogar and Roberts is that Prelogar wants to look at each statute and regulation one-by-one. Roberts wants to view all agency actions taken together. /66

So far, things aren't looking good for supporters of the current broad #OSHA vaccine-or-test regulation. Median justices, however, may endorse a targeted regulation aimed at specific higher-risk workplaces. /67

Key question I am now going to be following as we go into the next argument is whether median justices see healthcare workers as a particular, targeted high-risk environment or not. /68

Prelogar is arguing, in response to Breyer, that OSHA mandate is broad, but it's broad BECAUSE COVID is dangerous wherever people gather, and that is any workplace. In some places, risk may be more grave, but it is grave everywhere. /69

Alito asks whether Court should issue brief administrative stay to enjoin OSHA enforcement while Court decides whether to permanently stay the OSHA mandate. /70

Prelogar concedes that Court should do that if it feels it needs to, but says it should be brief. Roberts asks "brief compared to what?" and notes months of non-enforcement so far. /71

Breyer now comes in, re-emphasizing his theme that every day the Court enjoins enforcement means more cases and more hospitalizations. /72

Sotomayor also argues against an administrative stay, saying that risk of mass resignation arises only in February. Prelogar says that one is not necessary but she defers to the Court. /73

(Sotomayor accidently calls Justice Gorsuch "Neil" before correcting herself.) /74

Prelogar arguing that the OSH Act is sufficiently clear to support a vaccine-or-test mandate. Roberts expresses doubt that Congress, in 1970, had COVID in mind. Emphasizes that OSHA has never directed vaccines before. /75

Roberts says that this is akin to OSHA exercising a general police power reserved to the States and that, under the major-questions doctrine, we should be looking for a clearer Congressional authorization. /76

If you are a supporter of the #OSHA mandate as it currently exists, it is hard to count to five votes in favor. It sounds like at least two of Roberts, Kavanaugh, and Barrett think it is too broad and intrudes too much on the police power. /77

Alito leads in to a question saying that he is not saying the vaccines or unsafe and "he doesn't want to be misunderstood" but asks whether vaccines have some risk. Prelogar says yes, but benefits outweigh risks by "orders of magnitude." Alito agrees. But says there is risk. /78

Kagan jumps in to say that regulators weigh one set of risks against another all the time and routinely subject regulated to one set of risks to prevent another, greater risk. /79

Alito is essentially arguing that if the unvaccinated want to take the risk, why shouldn't OSHA let them? /80

Alito also asks about testing capacity, asking whether there is enough capacity for mask-and-test employers. Prelogar says OSHA considered that and could adjust if circumstances changed. /81

Kagan raises question about how to view the major-questions doctrine. Does it merely resolve ambiguity? Or can it be used to narrow broad, but unambiguous, text? Prelogar says the former. /82

Coming back to "who decides?", Gorsuch says that courts do not decide health policy, but it does decide whether agencies or States and Congress decide on vaccine mandates. Endorses "workaround" argument from Chief. /83

Prelogar argues that the OSH Act rejects the notion that the federal government needs to leave workplace safety up to the States. Gorsuch asks why not require flu vaccines or polio vaccines? /84

Prelogar says workers are already vaccinated against polio. Gorsuch pivots to flu. Prelogar says OSHA could, if the country experienced a sufficiently severe flu outbreak. /85

Kavanaugh says that major-questions doctrine applies not just when a text is ambiguous, but also when it is cryptic or oblique. Suggests that OSHA's powers are sufficiently cryptic or oblique. /86

Prelogar says in past major-questions cases, there were contextual clues that made the text ambiguous. Says all contextual clues weigh in favor of mandate here. /87

Kavanaugh says that statutes have expressly referred to vaccines in other contests, but not OSHA. Says Pres. Bush foresaw a future pandemic, but still Congress hasn't acted, even though it could have. /88

The key dispute here is between those who think that a broad, general authorization is enough and those who think that unprecedented powers need specific authorization. /89

Barrett asks about mandate's status as an emergency standard. Says ETS should be exception, not rule. Points to difference between OSHA general power and emergency power. Says "necessary" for ETS requires more tailoring. /90

Prelogar concedes that there may be workers in "graver" danger, but that all workers are in grave danger. /91

Barrett invokes Chief Justice Sutton's dissent in the Sixth Circuit, asking when the "emergency" ends and OSHA must rely on notice-and-comment process. /92

Prelogar notes that agency can only keep ETS in place in six months. Barrett agrees, but asks about other ETS's as pandemic evolves. /93

Now Keller is up for rebuttal for the challengers. Argues a stay is needed now before the first compliance deadline Monday. Also argues that lack of clear mandate means OSHA does not have power and public interest lies in enforcing limits on agencies. /94

And that is it. The applications are submitted. We will reconvene for the CMS mandate arguments shortly in a new thread. My bottom line? I am expecting the OSHA mandate to be enjoined as too broad and not clearly authorized. /Fin

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