Live Analysis: Supreme Court Hears Oral Arguments in CMS and OSHA Vaccine Mandate Cases January 7, 2022

Key Insights from the Oral Arguments Before the Supreme Court in Vaccine Mandate Cases

The U.S. Supreme Court January 7, 2022, held oral arguments on whether to allow the Centers for Medicare & Medicaid Services’ and Occupational Safety and Health Administration’s vaccine mandates to go into effect while appeals are heard in the courts of appeals. Sean Marotta, a partner at Hogan Lovells and AHA outside counsel, provided real-time analysis of the oral arguments and a recap of the key takeaways.

Supreme Court Oral Arguments in the CMS Vaccine Mandate Case

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

Supreme Court Oral Arguments in the OSHA Vaccine Mandate Case

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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