Kagan is such a strong communicator on vaccine mandates.

"This is a pandemic in which nearly a million people have died ... This is the policy that is most geared to stop all this. ... So whatever 'necessary' means, whatever 'grave' means, why isn't this necessary and grave?"
A blunt line of questioning from Sotomayor: "We are now having deaths at an unprecedented amount ... Why shouldn't the federal government—which has already decided to give OSHA the power to regulate workplace safety—have a national rule that will protect workers?"
Kagan: "Who decides? Should it be the agency full of expert policymakers, politically accountable to the president? ... Or courts can decide. Courts are not politically accountable.... Courts have no epidemiological expertise. Why in the world would courts decide this question?"
Kagan, frustrated: "I would think that workplace risk is about the greatest, least controllable risk with respect to COVID that any person has. ... You have to be there ... and you have to be there with a bunch of people you don't know and who might be completely irresponsible."
(Remember: The Ohio Solicitor General is arguing remotely—in opposition to the workplace vaccine-or-test mandate—because he has COVID.)
Both Kavanaugh and Barrett have tossed truly ridiculous softballs to the attorneys challenging Biden's vaccinate-or-test mandate for employers. I think it's exceedingly likely that the Supreme Court will invalidate the mandate. Biggest question is whether it's 5–4 or 6–3.
I mean, just listen to Kavanaugh's absurd softball (it's barely even a question) to the Ohio Solicitor General (arguing remotely because he has COVID). It's pure backlash management.
Chief Justice Roberts just disapprovingly cited Ron Klain's retweet of a reporter who called the employer mandate a "workaround." I think this is pretty much over.
Here's the chief justice alluding to the Klain retweet: "It seems to me that the government is trying to work across the waterfront and is just going agency by agency. I mean, this has been referred to as a 'workaround' and I'm wondering what it is you're trying to work around."
More from Roberts: "It seems to me that the more and more mandates that pop up in different agencies, I wonder if it's not fair for us to look at [mandates] as a general exercise of power by the federal government and then ask the question: Why hasn't Congress had a say in this?"
The chief justice suggests that the OSH Act cannot authorize a vaccinate-or-test mandate because Congress wasn't thinking about COVID when it passed the law 50 years ago. I'd love to see him apply this reasoning to the Federal Arbitration Act!
After insisting that he's not questioning the safety of COVID vaccines, Alito questions the safety of COVID vaccines, citing their "adverse consequences."

"There is a risk. Has OSHA ever imposed any other safety regulation that imposes some extra risk on the employee?"

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More from @mjs_DC

6 Jan
I hear this argument all the time and it’s just not historically accurate. Fascists, including fascist world leaders, are often extremely lazy! Hitler was an indolent loafer who lazed about the Berghof sleeping late into the morning and avoiding real work! bariweiss.substack.com/p/the-january-…
The canard that “fascist leaders can’t be lazy” seems to have been formulated to exonerate Trump from accusations of fascism, but it does not withstand the slightest scrutiny. Being an idle, slothful moron is not, and has never been, an impediment to becoming a fascist leader!
Volker Ullrich’s superb Hitler biography does a fantastic job conveying just how astoundingly lazy and incurious and listless and lethargic Hitler was. All throughout his rise to power, and during his entire reign as Fuhrer, Hitler was allergic to hard work and critical thinking.
Read 4 tweets
5 Jan
Trump judges have so much to teach us. Today, we learn that Biden's vaccine mandate for *federal* contractors "intrudes upon state liberties" by regulating "an area traditionally left to the states."

Who knew states regulate federal contracts? What a fascinating discovery.
Ah, the timeless constitutional principle that the federal government loses its ability to regulate federal contractors once they make up "sizeable portions" of a state's population. The brilliance of Trump judges extends into dimensions we can't even see. opn.ca6.uscourts.gov/opinions.pdf/2…
Of course, this entire opinion is essentially advisory since a lone Trump judge in Georgia has already issued a nationwide injunction against Biden's vaccine mandate for federal contractors. Republican-appointed judges sure do love nationwide injunctions! crowell.com/files/Georgia-…
Read 6 tweets
27 Dec 21
By a 2–1 vote, the 5th Circuit says it will hear oral arguments in January to decide whether the Texas Supreme Court should get to interpret S.B. 8, the abortion ban enforced by bounty hunters.

In dissent, Higginson calls S.B. 8 “this mutinous law.”

The 5th Circuit is likely dragging its feet to keep abortion outlawed in Texas until SCOTUS overturns Roe v. Wade in June. At that point, Texas can simply ban abortion outright rather than rely on vigilantes. Gorsuch teed up this dilatory tactic perfectly in his S.B. 8 opinion.
The 5th Circuit is using every tool at its disposal to drag out proceedings until Roe is overturned. It’s so brazen!
Read 4 tweets
22 Dec 21
NEW: The Supreme Court will hear oral arguments in the challenges to Biden’s employer vaccine mandate and CMS vaccine mandate on Jan. 7.
The justices are very obviously backing away from their aggressive use of the shadow docket, putting the vaccine mandate cases on their rocket docket instead. That means full briefing, oral argument, and a real opinion, rather than an unsigned midnight order.
The employer mandate requires businesses with 100+ workers to impose a rule compelling either vaccination or weekly testing. The CMS mandate requires nearly all health care workers to get vaccinated.

SCOTUS may block both; I think the CMS mandate has a better chance of survival.
Read 5 tweets
22 Dec 21
🚨Slate management is trying to slash our cost of living adjustments, which are already lower than industry standards. To demand these cuts in the midst of inflation and a pandemic is an insult. We'd appreciate your solidarity and support as we fight for a fair contract.
Thanks to Slate's union, our staff had a safety net in place throughout the pandemic. But now management wants to weaken or repeal the guarantees that helped us get through rocky times. We're being told we don't deserve the protections that we thought we had already won.
Management has also refused to give us more than ten weeks' parental leave—two weeks less than what *Donald Trump* gave federal employees, and far below industry standards. I agree with this excellent Slate article: Ten weeks is an affront to new parents. slate.com/human-interest…
Read 4 tweets
15 Dec 21
The Supreme Court takes up three new cases: one about sovereign immunity, one about arbitration, and one about trains.

The arbitration case worries me—it's Paul Clement's effort to crush Private Attorneys General Act workarounds to mandatory arbitration. supremecourt.gov/DocketPDF/20/2…
Basically, after the Supreme Court barred states from limiting mandatory arbitration and class action waivers outright, some blue states passed Private Attorneys General Acts (PAGAs) to let plaintiffs file "representational litigation" on behalf of the state—a neat workaround.
Thanks to Private Attorneys General Acts, employees forced to accept mandatory arbitration and class action waivers can step into the state's shoes to file a "representative" lawsuit on behalf of themselves and other wronged employees.

Paul Clement wants to destroy that bypass.
Read 7 tweets

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