Thread by @smmarotta

Here is the thread for the #CMS vaccine mandate argument, which is starting now. First up is Brian Fletcher, the principal deputy solicitor general, who is arguing for CMS. /1

Fletcher argues that vaccination of medical staff is best way to protect Medicare and Medicaid beneficiaries and that CMS carefully considered and rejected fear of staffing shortages and alternatives. /2

In response to a Justice Thomas question, Fletcher says CMS did not rely on just general rulemaking authority but also specific statutory authority for each category of healthcare provider. Trying to head off criticism of OSHA's actions. /3

Fletcher admits that vaccine mandate from #CMS is new, but that COVID is unprecedented. /4

Roberts asks whether relationship between agency and regulation is closer for CMS and OSHA. Asks which is most-acute danger: CMS, OSHA, or contractors. Suggests that government is just trying to use any power it has, not address targeted dangers. /5

But Roberts does seem to concede that the healthcare setting presents more-acute risks to patients than to workers generally or federal contractors. Fletcher doesn't want to undermine other mandates, but also wants to hold the line for CMS. /6

Sotomayor with a friendly question that this is a spending-clause case rather than a Commerce Clause case. Federal government can decide how to spend its funds. Fletcher, of course, agrees. /7

Fletcher points out that CMS imposes intrusive, expensive compliance obligations all the time. This is not unusual. /8

Alito asks whether States had clear notice that accepting Medicaid money would subject them to this sort of requirement. Fletcher replies that States had notice they need to comply with CMS regulations, which can and do change all the time. /9

Alito and Fletcher tangle over whether specific authorizations he is relying on actually confer power or are just definitional sections. /10

Alito asks where the line is on CMS' powers. Fletcher points out that professional organizations, including @ahahospitals, are recommending vaccination policies and thus this requirement is reasonable. /11

Barrett jumps in and asks about the facility-specific statutes. She says each of those statutes are different and says that not all of them refer to health and safety. Says, for instance, skilled nursing facilities statute is stronger than ambulatory surgical centers. /12

Barrett asks what happens if she thinks some of the statutes can support a vaccine mandate and not others. What does she do since this is an omnibus rule? /13

Fletcher divides statutes into those that mention health and safety and those that don't. Says case is clear where health and safety is mentioned. For those where it is not, which is 3% of covered workers, there are still textual clues supporting mandate. /14

Barrett seems to be asking whether she can stay the district court injunctions as to some categories of providers or whether, if not all facilities can have a vaccine mandate, the injunctions have to remain in place in total. /15

Fletcher says that the regulation is severable and that if the Court is not satisfied that all facilities can be covered, then it should stay the district court injunctions as to those that can be. /16

Sotomayor lets Fletcher go back to his core theme: If the power to set conditions of participation on facilities means anything, it means you can protect beneficiaries from contracting highly infectious diseases from healthcare workers. /17

The Court is a lot quieter in this argument. Does it mean that the Court is just tired from two hours of OSHA? Or is the Court more-likely to allow the CMS mandate? We'll see when the challengers begin their arguments. /18

Fletcher is given room to run without questions on staffing shortages. Argues that CMS reasonably found that healthcare already has high turnover and that any additional turnover from the CMS mandate is minimal. /19

Kagan asks about the lack of notice and comment and whether Secretary had sufficient time to develop the rule with public participation. Fletcher says no because of all of the work that goes into crafting the interim final rule. /20

Gorsuch brings up statutory prohibition on controlling tenure of staff. Suggests that putting facilities to choice of receiving money or firing staff essentially does that. /21

Fletcher says that prohibition means "don't hire that person, do hire this person." Gorsuch asks whether the prohibition can be read as he seems to read it. Fletcher says it's possible, but not the most-natural reading. Says that statute allows standard setting. /22

For example, a hospital must be staffed by doctors. That does control who is hired. Gorsuch says that it's a range; some things are controlling administration and others are not. Fletcher says wherever the line is, this falls on the right side of it. /23

Gorsuch replies that CMS has never used standard-setting power to require vaccines before. Asks whether CMS can require doctors to get enough sleep or take their vitamins. /24

Fletcher says there may be problems with those requirements, but not because they are control over an employee's tenure or hiring. /25

Kavanaugh asks Fletcher to explain how costs are being borne mostly by federal government. Fletcher replies that government is covering cost of vaccines. /26

Kavanaugh asks why CMS does not require other vaccines, such as flu or childhood diseases. Fletcher says that CMS reasonably concluded that COVID is more dangerous than flu and that other vaccines do not need a CMS standard because they are routinely vaccinated anyway. /27

Kavanaugh seems satisfied by Fletcher's answers.

Barrett is back to the particular-facility statutory provisions. Fletcher says facility-specific is sufficient even without general regulatory grand to CMS. /28

Missouri's Deputy Solicitor General Jesus Osete is now up representing one coalition of challengers. Says that CMS is relying on "vague" provisions "scattered throughout" the Social Security Act. /29

Based on Fletcher's argument, however, it is clear that the Court sees the CMS mandate as less of a regulatory overreach. There may be statute-specific reasons to question it, but it does not implicate the same separation-of-powers, who-decides issues as the OSHA mandate. /30

Thomas asks about the States' standing to challenge the mandate. Osete says that States have variety of bases to challenge the mandate, including as proprietor of state-run facilities. /31

Roberts asks about the Spending Clause context; this is about spending federal funds and States signed the contract. Osete says that conditions of participation must come from unambiguous text and text there is not unambiguous. No mention of vaccination. /32

Kagan is incredulous. Asks whether CMS is a mere bookkeeper and has no authority to protect vulnerable populations. /33

Kagan emphasizes that the elderly and the poor are "especially vulnerable" to COVID and that it is a "principal responsibility" of CMS to protect. /34

Kagan and Osete spar over whether CMS can require infection control measures. Osete says that is expressly allowed. Kagan asks whether he really is arguing that infection prevention requires express language. Osete dodges. /35

Osete is getting pummeled by the liberal justices and no one is coming to his aid. But the conservative justices tend to hold back more in the free-for-all questioning portion. /36

Kagan: "One thing you have to do is not kill your patients. That seems like a pretty basic infection control measure."

Osete says that vaccinations are within States' province. Congress needs to be clear. /37

Breyer is back to the public interest, saying why the public interest does not compel staying the district court injunctions so that rising cases can be stopped. /38

Osete pivots to staffing shortages, arguing that it is worse for patients if rural hospitals are short staffed because staff quits rather than be vaccinated or seek an exemption. /39

Osete says that mandate will "devastate local communities" that "do not draw their pool of applicants from the coasts." Says that their views should be considered through public input.

Kagan says CMS considered and rejected that argument based on the data it has. /40

Kagan says that CMS had to balance all the data and make a decision in light of duty to protect beneficiary, including overcoming fear from those who do not want to receive services from unvaccinated staff. Why not defer to CMS expertise? /41

Sotomayor asks why government, as payor of services, cannot decide it only wants to pay for services at facilities where staff is vaccinated. /42

Osete is not having an easy time here, and no one on the conservative side is coming to bail him out, even in the justice-by-justice questioning. We will see if the Louisiana SG, Elizabeth Murrill, has it better or if this is a trend. /43

Justice Kavanaugh says "this is an unusual administrative law" experience because the people regulated, hospitals and healthcare providers, are not complaining, and in fact support it. He asks Osete what to make of that. /44

Osete says small providers do have a problem with it, and, anyway, States have their own facilities.

Kavanaugh says "there is a missing element" in that there is no outcry from the vast majority of privately owned facilities.

Osete says States speak for their citizens. /45

Kavanaugh, like the Chief, seems to think this is different than the OSHA case and far-more-defensible. Also asks why vaccines are different than wearing gloves.

Osete says that vaccines are a "permanent medical procedure" that cannot come off when work is over. /46

We're now on to Elizabeth Murrill of Louisiana, who is arguing by phone. Her line is also staticky.

She is the most anti-vaccine mandate advocate so far, calling vaccines an "invasive" medical procedure. /47

Murrill argues that mandate will "eviscerate informed consent" for healthcare workers. Again, a surprisingly anti-vaccine position from the route that the challengers have taken so far, particularly Keller. /48

Roberts asks whether Murrill agrees that COVID no longer poses the dire emergency it once did.

Murrill says those are "shifting sands." Doesn't really answer question. /49

There is a fair bit of awkward dead air, where Murrill isn't arguing and no one is asking questions. Whether it is fatigue or just everyone thinks the issues have been ventilated adequately is unclear. /50

Roberts goes back to the Spending Clause context, asking why the requirement that States must comply with CMS regulations is not adequate notice of what they were getting into when they took Medicare and Medicaid money. /51

Murrill says that CMS' job is to provide funds, not to set standards for patient protection.

More dead air. This is a very awkward leg of the argument. /52

I don't know why Murrill isn't filling in argument when we get silences. This isn't effective at all, even if you agree with her arguments. /53

Murrill arguing that the CMS mandate was a "pretext" and a "workaround." No one is engaging, even to jump on her. They're ready for lunch.

(My sainted wife brought me lunch during the OSHA oral argument.) /54

Breyer loops back, emphasizing the public interest and equities, going on at some length, similar to as he did in the other arguments. /55

Murrill says the CMS mandate is different than the OSHA mandate because there is no mask-and-test opt-out and is "extraordinary" and "immediate" and requires a stay now. Murrill says existing infection-control measures are enough. /56

Sotomayor not sure how States have role to complain except as proprietors of state-run facilities. Notes providers are not complaining. Asks how this is different from the innumerable rules CMS has, from bed height to hand-sanitizer proximity. /57

Murrill says that they have standing as more than providers. Under Medicaid, States contract with facilities.

Argues that power to "require the individual to submit to a medical treatment" has never been asserted. Again, surprisingly anti-vaccine. /58

And there is nothing on the justice-by-justice roll call. Brian Fletcher is up for rebuttal. /59

Fletcher argues that challengers seem to contend that "vaccines are different." Says that there is no basis for that in the statute, which is a federal-spending provision. States normally regulate medicine, but participants in Medicaid and Medicare need to comply with regs. /60

Fletcher also argues that fact vaccines are permanent isn't a relevant difference. Vaccines are ubiquitous in healthcare settings and COVID no different. Appeals to Barrett that all statutes support mandate, but that Court should rule statute by statute if necessary. /61

Fletcher notes that CMS will exercise discretion on a facility-by-facility level in enforcement. Will not just terminate a facility struggling in good faith to comply with the mandate. /62

And that's it. The applications are submitted and the gavel comes down. My take-away: It may be close, but I am tentatively predicting there are at least five votes to uphold the mandate in full and maybe six votes to uphold it in large portion. /Fin

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