Thread by @gabrielmalor

Attorney arguing against the OSHA mandate points out the 100-employee line-drawing was based on expedience rather than evidence that COVID-spread is worse in businesses with more than 100 employees.

Justice Barrett getting some concessions here from counsel opposing the OSHA mandate, who seems to agree that there are some businesses where a mandate might be appropriate. She mentioned meatpacking plants and the dentist.

The next attorney opposing the OSHA mandate is up now. He's arguing remotely bc of a covid diagnosis. (His symptoms have abated.)

Ohio SG Flowers makes an interesting comparison to terrorism, arguing that even though we face a risk of terrorism at workplaces (in addition to in public and at home), that doesn't make terrorism an OSHA problem.

I don't think he got his full argument out before he got cut off.

Justice Breyer returns to his shtick from earlier that he just cannot fathom that the challengers are seeking a stay of the OSHA mandate before it goes into effect.

I'm not sure who he's trying to convice with this.

Justice Thomas invites the Ohio SG to discuss how efficacious the vaccines are.

Ohio SG starts by pointing out that "we are strong supporters of getting vaccinated." Cites reduction in grave illness and death.

Then moves to differences in vulnerability to the virus.

Justice Thomas also getting in a little clean-up after Justice Sotomayor suggested there was a federal police power.

US SG Prelogar is now up. The next line of questioning will hopefully tell us more about where the conservative justices are on the OSHA mandate.

CJ Roberts notes that the arguments in this case, the CMS case, and the federal contractor cases (which aren't before SCOTUS yet) are that COVID is a "grave danger" in all these places.

Pushes SG Prelogar on whether there is any gov't place where it is not a "grave danger."

CJ Roberts' point seems to be that the gov't position is a "workaround" for a general exercise of power hiding in the particular statutory authorities the gov't is relying on.

Seems skeptical about whether Congress has actually authorized such a general power.

SG Prelogar responds to rely on the OSHA emergency statute (which is the only thing she can rely on).

CJ Roberts: "it seems like this is something Congress should be responding to" contrasts with "the Executive branch alone."

From CJ Roberts! -->

https://twitter.com/obarcala/status/1479488135016980481

As always, friends, #nevertweet.

https://twitter.com/Neoavatara/status/1479489137115910148

Justice Alito asks if gov't position allows for an administrative stay of the OSHA mandate while the Court deliberates.

SG Prelogar started by suggesting that delay might be okay, but then suggested that every day that passes represents grave harm. Agrees to a brief stay.

Both J. Alito and CJ Roberts then compare a brief administrative delay to the months that have passed between issuing of the ETS until it becomes effective next week.

CJ Roberts seemed a little annoyed.

The justices are very obviously arguing among themselves (through SG Prelogar) about whether an administrative stay is appropriate to give the Court more time to deliberate—and how long such a stay should last.

Regarding the argument raised by the Chief and Justice Alito that pushing off the effective date until after the holidays, this was obvious from the start:

https://twitter.com/gabrielmalor/status/1456247724643430401

CJ Roberts name-checks the major rules doctrine (!!!), suggests that Congress could not have empowered OSHA with a general authority to issue a vaccine mandate ETS.

J. Alito precedes his next question with a broad disclaimer that he recognizes the vaccines are safe and effective, then asks if there are risks to getting vaccinated.

SG Prelogar: there is minimal risk, by orders of magnitude.

Alito: but there is some risk.

SG: miniscule

Alito: "I'm not making that point, I'm not making that point, I'm not making that point." Wants to know if there are any other OSHA regulations that come with risks.

SG: can't think of one

Justice Kagan jumps in to save the SG, notes that risk management is part of administrative rulemaking.

Justice Sotomayor, cleaning up this line of questioning, returns to the observation that the OSHA mandate includes a "test-and-mask" option for people who fear the so-called "risk" of vaccination.

Justice Alito pushes back, asks if testing is viable right now given "the stories we've seen" about difficulty getting tests.

SG Prelogar says OSHA took into consideration the availability of testing in passing the ETS, and that it can be upheld on that basis.

Now three justices have asked the SG about the major questions doctrine: CJ Roberts, Justice Kagan, and Justice Gorsuch.

Justice Gorsuch wants to know if they should take anything from the fact that OSHA has not previously mandated vaccines.

SG: COVID is different.

Gorsuch: What about polio? Polio was a terrible scourge. Flu kills hundreds of thousands of people per year.

SG argues that virtually all workers are already vaccinated against diseases. Argues flu is an exception because it is seasonal.

(Justice Gorsuch joins at least Justices Breyer and Sotomayor in sharing falsehoods about certain diseases. FYI, flu does not kill hundreds of thousands of Americans each year.)

(The other ones, off the top of my head, were Justice Breyer's argument that an administrative stay would lead to 750,000 new infections per day and Justice Sotomayor's claim that 100,000 children were in serious condition, many on ventilators.)

We're still on the first case today. After this (and we still have rebuttal to go here) the Court will hear argument on the CMS mandate.

Unfortunately, I have to step away now to do some actual work.

I don't have a good read on the justices here (and always take predictions based on oral argument with a grain of salt), particularly Justices Kavanaugh and Barrett.

The one thing we'll definitely see: an administrative stay to allow longer deliberation/writing.