#SCOTUS hears oral argument beginning at 10 a.m. in two sets of covid vaccine-mandate cases. Some background here: nationalreview.com/bench-memos/fe…
You can listen in via the "Live Oral Argument Audio" link on SCOTUS home page. supremecourt.gov

Time allowing, I'll also offer a thread of commentary.
Oral argument first on OSHA emergency vaccine-mandate rule.

Keller for NFIB points out that rule is so onerous that Postal Service is seeking exemption.
Kagan: Why isn't OSHA rule necessary? This is policy most geared to stopping pandemic. "We all know what the best policy is": vaccinations. Second best is wearing masks. "What else should be done?"
Chief: How focused on the workplace does something have to be before you say that OSHA can regulate it? How about assembly lines?
Keller: There are lots of other effective alternatives.

Chief: Fact that Post Office can't do mandate efficiently doesn't mean that other businesses can't.
Breyer: Good arguments on both sides. Are you asking us to issue a stay of OSHA rule? [Obviously, yes.] Lots of new cases. Hospitals full. How is it in public interest to stop rule from taking effect? "I don't want to repeat myself," he says as he repeats himself.
Keller: OSHA rule would have massive economic consequences. Testing isn't available. Congress didn't clearly confer authority on OSHA.
Gorsuch: Does "major questions" doctrine depend on statutory ambiguity?

Keller: No.

Gorsuch: Why an immediate stay?

Keller: Workers will quit right away. Permanent displacement.
Alito: Is question whether rule is necessary to protect general public or unvaccinated employees?

Keller: Latter.
Audio goes bad on Sotomayor questioning remotely.
Sotomayor: Deaths at unprecedented amounts. Not a mandate for vaccine. A masking mandate. Same as mask for sparks flying.
Sotomayor: How much clearer could OSHA statute be? [?!?]
Sotomayor: Why is human being not like spark-producing machine if human is spewing virus?
Kagan: Yes, there are all kinds of trade-offs? Should expert agency that is completely politically accountable decide? Or should courts decide?
Keller: OSHA does not have expertise over communicable diseases. Not part of HHS.

Kagan: I'm sure OSHA talks with other agencies.
Keller: Not an industry-by-industry analysis. Internal inconsistencies.
Kavanaugh: "Major questions" doctrine goes to "who decides?" as between Congress and agencies. Difficulty is what is major enough? What look at?

Keller: Size and scope; vast economic and political significance.
Barrett: Some workplaces present threats different from general public places.

Keller: Yes. Problem is that OSHA rule is economy-wide.
SG Flowers for Ohio (arguing remotely): Blunderbuss rule. State and local officials are far better suited.
Ohio SG Flowers: OSHA rule doesn't address a workplace danger.

Kagan: Do you know of any workplaces that haven't fundamentally transformed themselves? [Doesn't that cut against need for OSHA rule?]
Kagan: Workplace risk is greatest, least controllable risk that person has.

Flowers: Risk with family might well be greater. OSHA rule defines risk very broadly.
Breyer: There are exceptions for some workers of covered employers. So OSHA did make some distinctions.

Breyer: "750 *million* new cases yesterday"

Oops!
Breyer: Why issue a stay?

Flowers: Illegality is sufficient basis.
Flowers: Vaccines aren't effective in stopping omicron transmission.
Sotomayor: Many kids are on ventilators from covid.
Sotomayor posits that federal government's Commerce Clause power is co-extensive with states' police power.
CT: Do vaccines limit transmission?

Flowers: Vaccines stop serious illness. Seem less effective on omicron transmission.
Breyer: What's difference between fire risk and covid risk in workplace?

Flowers: Risk that is ever present in all places can't be regulated simply because it is in workplace.
Alito: Per OSHA, danger being addressed is only to unvaccinated workers, right?

Flowers: Yes. OSHA says no one who is vaccinated is in serious danger.
Sotomayor: Unvaccinated people infect other unvaccinated people.
Gorsuch: Major-questions doctrine regulates action between Congress and agencies.

Flowers: Not just an ambiguity clarifier. Bears on permissible delegation. OSHA rule depends on broad and standardless delegation.
Kavanaugh: Why not defer more to executive in emergency situation?

Flowers: Emergency makes congressional action all the more important.
SG Prelogar (for OSHA): Vaccination is single most effective way to protect workers in workplace. Acute crisis.

Thomas: Same argument for any infectious disease?

SG: If grave danger to other employees. E.g., blood-borne pathogen standard.
Chief: Seems like federal agencies, through series of mandates, are trying to circumvent Congress and the states.
Chief: Sounds like the sort of thing that Congress and states should be responding to. Not agency by agency.
Breyer: Could White House issue an order to all federal employees to exercise regulatory authority to require vaccines?

SG: Not what is happening.
Breyer: OSHA could have done industry by industry.

SG: Overwhelming evidence that risk exists anywhere indoors.
SG: Some workplaces have even graver risks, but there is baseline grave risk everywhere.
Alito: Rule was issued on Nov. 5, but hasn't been enforced yet. Does US object to deferring effective date past next Monday?

SG: Brief administrative stay would be fine.
Chief: Brief compared to months that rule hasn't been in effect?
Breyer: Any day of administrative stay will lead to 750,000 new infections. [???]
Chief: You're saying that Congress acted 50 years ago to confer authority on OSHA. But federal government has never mandated vaccines, right?
Chief: Hard to argue that Congress has given such free rein to OSHA.

SG: Congress contemplated emergency situations and empowered OSHA. OSHA commonly issues nationwide standards.
Alito: Most OSHA regs affect workers when on job but not when off. But vaccine is different.

SG: Focus is on protection at work.
Alito: Vaccines are safe, but some people will suffer adverse consequences, right?

SG: Yes. Minimal compared to covid.

Alito: Has OSHA ever imposed any other reg that has some adverse health consequences?

SG: No. But no reason to think precluded.
Very difficult to read the Court. The three liberal justices will clearly vote to deny the stay (even as Breyer is troubled by merits). Much less clear for other six justices.
Alito: Is testing alternative viable?

SG: OSHA concluded yes.
Exchange between Kagan and SG arguing for limited role for major-questions doctrine.

Gorsuch: If ambiguity exists on legal issue of this magnitude, shouldn't it be for Congress to resolve? White House seems to be doing end-run around Congress's inaction.
Barrett: OSHA's use of emergency power, bypassing notice and comment, ought to require higher standard of "necessary."

SG: Agreed. But plaintiffs haven't come up with alternatives.

Barrett: Is that their burden?

SG: OSHA addressed alternatives.
ACB: OSHA didn't adopt rule in response to pandemic, but instead in response to availability of vaccine and delta. When does emergency end? When must OSHA resort to ordinary authority?

SG: Emergency can be of substantial duration. [Doesn't contest it could go on for two years.]
Keller (NFIB) rebuttal: (1) We need stay now, before enforcement starts. Employers are required to submit plans on Monday. Employees would have to get vaccines right away. That's why workers will quit right away.

(2) Absence of clear mandate in OSHA Act, per ruling 40 yrs ago.

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