Advisory Opinions - Supreme Court Blocks Vaccine Mandate

Episode Date: January 14, 2022

It's an emergency podcast! (Well, at least in part). David and Sarah recorded a mailbag podcast Thursday morning, complete with fretting about when the Supreme Court would rule in the vaccine mandate cases. Then, SCOTUS ruled! So this podcast keeps the mailbag and cuts the fretting. Instead David and Sarah spend the first half walking through the vaccine opinions. It's exactly the kind of conversation that everyone loves, a deep discussion of administrative law.   Show Notes: -NFIB v. OSHA -Biden v. Missouri Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Sasquatch here. You know, I get a lot of attention wherever I go. So when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See home club for details. You ready? I was born ready.

Welcome to an emergency hybrid advisory opinions podcast. By emergency, I mean we're taping this on Thursday night, late, after we have digested and studied and scrutinized Scott, husband of the pods, magnificent victory by hybrid. I mean, we already recorded a podcast. And so you know what we're going to do, listeners? We're slapping together the pre-decision podcast and the post-decision emergency podcast into one hybrid pod. And so here's how it's going to go. First half is going to be high energy SCOTUS analysis with, I mean, extreme excitement. And then we're going to go to kind of a chill mailbag segment. Kind of a chill mailbag. In which you can sense my anxiety that we don't have a Supreme Court opinion. It's a real Frankenstein monsters of a podcast today.

We apologize, but you know what? Y'all love emergency pods and we couldn't not deliver an emergency pod today. First question I feel like I'm getting the most though is what are you and Scott doing to celebrate? How are you taping a podcast when there should be like champagne flowing in your house? No, Scott is in Austin with all of the legal Eagles of Texas, basically all in one place. And they are sending me pictures of my husband outdoors with a glass of champagne. The weather looks warm. He's not wearing a coat. I'm so annoyed right now. You know, and here's why you should be double annoyed, Sarah, because not only are you not celebrating a Supreme Court victory with your husband right now, you're actually doing the service of broadcasting his victory to legal scholars, to lawyers, to judges, to business leaders who listen to this podcast coast to coast.

Yeah, it was like insult to injury also that at 225 today, I get a text from the husband of the pod. OSHA stay granted. I text back, OMG, with all the Gs. The second I hit send on that text, the baby wakes up from his nap. I can't even pull up the opinion

at all because, of course, I think I've mentioned we don't have childcare right now because of COVID. So anyway, there's like, it's a lot of insult to injury around here well okay you we need to dive in to the opinions we need to but you did raise a question for me it's omg spelled with a bunch of g's? Wouldn't that be like O-M-G-G-G-G-G?

And shouldn't it be O-M-G? You're showing your age, David. Obviously, it's not phonetic. You say the G and you hold the G sound. Okay. You're just wrong. Okay, all right. Please ask your age-appropriate children how you spell O-M-G. All right, all right.

I now know. Thank you. You're welcome. Okay, so breaking down OMG. All right. All right. I now know. Thank you. You're welcome. Okay. So breaking down this opinion, top line, right? We have per curiam opinion. Let's just do the OSHA one first. We'll save CMS, the healthcare workers, like we did last time where we then gave it the

shortest of shrifts. It got like four minutes shrift. Okay. OSHA case. Percurium opinion up top. Concurrence from the three. Gorsuch, Thomas Alito. Dissent from the three. Breyer, Kagan, Sotomayor. It was a 3-3-3 opinion, David. Yep. And look, I think

again, big picture, they decided it on two issues which kind of merged together. And it's going to be a little hard to get them apart. But major question doctrine and that this was simply not a occupational hazard. Those were different issues, but they merged together in the reasoning somewhat. In the per curiam, the concurrence from the three is all major question doctrine and how to think about major question doctrine because the per curiam never uses the term major question doctrine, even though it cites the case where the term major question doctrine is used. And then, of course, the dissent, very predictable and just saying like, yeah, this is an occupational hazard. The fact that OSHA hasn't had to do this before is because the pandemic is something we've never had to deal with before. I thought all of the opinions were

very honest assessments. There wasn't any sort of disingenuous legal shenanigans going on. But I think it's worth walking through all three. So what's your top line? My top line is it's actually hard for me to talk about one without talking about the other. Because I think when you read them together, you really can get a better understanding of what is going on here. And essentially, here's the way I put it.

So for listeners who are not up to speed on what happened fully, this was 6-3 staying the OSHA mandate. It was 5-4 permitting the CMS. This is the healthcare workers in federally funded Medicare, Medicaid funded health care, permitting that vaccine mandate to go into effect. So my top line goes something like this. This was straight up conventional status quo administrative law. status quo administrative law. And by that, what I mean is if you look at the OSHA mandate,

for the OSHA mandate to be enforceable, you would have to grant OSHA more discretion than a fair reading of the statute in line with current administrative law jurisprudence permits. So you would have to sort of say, this is special. The pandemic is special. So we're going to give more leeway to OSHA. And for CMS, what you had was classic normal agency deference. And that cut for CMS. And because classic normal agency deference still doesn't get you there with OSHA, it cut against OSHA, if that makes sense. This was like a status quo. Both of them were status quo opinions, which makes some sense in an emergency docket context because are the institutionalists in particular in the court going to want to move the ball substantially one way or the other on administrative law

in an emergency docket case? I don't think so. That's my top line, Sarah. All right. So let's dive in a little. First, who wrote the per curiam? Obviously, we don't know. It's an unsigned opinion. We can assume, obviously, it's by one of the justices in the majority. But I will tell you a little inside baseball. Generally, in one of these emergency cases, the justice who oversees that circuit would draft the opinion. In this case, that is Justice Kavanaugh. And it actually fits with everything else we know, right? He doesn't write the concurrence. He's not one of the three concurring.

So he's one of the three most available to write the per curiam. It also sounded Justice Kavanaugh-y for a variety of reasons we can kind of get into later. But let me give you the case for why we know nothing about who wrote the opinion, which is, yes, this was sort of technically still on the emergency docket. But I found it very interesting that it posted on the part of the Supreme Court website's opinions of the court instead of opinions relating to orders. Yeah. So anyway, that's all to say like 51% chance that Justice Kavanaugh wrote the PC, but fun times had by all. So starting at the beginning, I'm going to quote liberally at times here. Hopefully you can tell

the difference. The secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no everyday exercise of federal power. The act that OSHA cites for its authority, the opinion of the PC says, empowers the secretary to set workplace safety standards, not broad public health measures. broad public health measures. And so this is going to set up the whole argument for the workplace part. So although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime,

air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face those same risks while on the clock would significantly expand OSHA's regulatory without clear congressional authorization. That's the ballgame right there. Yeah. Yeah. To me, I was actually trying to explain this to my son, who's a junior in college and wanting to go to law school. And I was trying to explain why, if this is occupational health and safety and health, why a vaccine mandate wouldn't fit under the health category, just under sort of health is health, right? And that is, is the health issue coming from the occupation or is the health issue just essentially coming from life or from, you know, the, you know, and I thought it was

quite well stated in the opinion. Is this something that's just sort of part of the atmospheric risk that we all incur from daily life and it also occurs at the workplace versus this risk is generated from the workplace? And I think that's a very helpful distinction and also why the court left open the possibility that there are workplaces where the nature of their work might be so distinct that it generates a specific COVID health risk attached with the work that's specific to the workplace as opposed to just part of living in a time of pandemic. This is where I thought the dissent argument was at its weakest, actually. So reading from the dissent, consistent with Congress's directives, OSHA has long regulated risks that arise both

inside and outside of the workplace. For example, OSHA has issued and applied to nearly all workplaces rules combating risks of fire, faulty electrical installations, and inadequate emergency exits, even though the dangers prevented by those rules arise not only in workplaces, but in many physical facilities. Yeah, that actually, to me, proves the difference here, because there's not a generalized fire risk everywhere you go. The risk of that fire is due to that building that you're in. It is a specific risk by the occupation in the sense that when you report to work, you report to a building and they need to make sure that that building's not going to catch on fire. Exact same thing with the electrical installation and the emergency exit. That's all building specific, therefore specific to your workplace.

Very different from a communicable disease. And the majority takes that on, says the dissent contends that OSHA's mandate is comparable to a fire or sanitation regulation imposed by the agency. But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccine, after all, cannot be undone at the end of the workday. Contrary to the dissent's contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not part of what the agency was built for. Okay. Yeah, I agree with that, except there, they're not building in the or test part. Correct. You can't undo the vaccine, but as we've talked about plenty,

it's not a vaccine mandate. It's a vaccine or test mandate. Now you do have to then get a medical test, potentially on your own dime and on your own time if you don't get vaccinated. But to say that that's something that cannot be undone at the end of the workday, I actually think they have a good answer to that, the majority. But I wanted them to take the fire electrical installation argument a little more head on. Right. Yeah. No, I agree with you.

And as soon as I read the fire and electrical, what you're talking about is a risk and a danger generated specifically from the workplace. Right. That is, you don't have that risk if you're not at work, whereas that's not the same. From that fire. There might be a different fire, but fire isn't the risk. It's that fire. That fire. Yes, exactly. Whereas if I'm not at work, I have risk of COVID that might be greater at home, depending

on the home circumstances, or might be greater at a movie theater, or might be greater at a basketball arena, or might be there's just a lot. And it's all COVID. Exactly. I think that this sentence is is key and it's when I put in our little slack when we're going back and forth OSHA's indiscriminate approach fails to account for this crucial distinction between occupational risk and risk more generally and accordingly the mandate takes on the character of a general public health measure. That is, and as I said in our little conversation, that word indiscriminate approach, you know what a synonym for that is? Blunderbuss.

Blunderbuss, yes. So I actually felt that the whole procurium opinion was largely the Ben Flowers, the Ohio Solicitor General's argument written out. It was far more Ohio than husband of the pod. Interestingly, I think the concurrence was more husband of the pod. And again, if you compare it to the CMS opinion, the health workers under Medicaid and Medicare opinion, which was upheld. I do think that part of this is we are not going to allow without very specific congressional authorization, a vaccine or testing thing to have a job in this country, but we will to have this job, this job being healthcare workers. That's a specific job with a specific need that's related to COVID-19. But the other one is just

having a job in this country. That is, that's just too much. And also with the CMS regulations, different regulations that say different things in pursuit of different interests. And so they, as we said on this podcast several times, they're very different cases and don't be surprised at different outcomes. And, you know, I think that that's, so when I saw the outcome where you had OSHA stay granted, CMS stay removed, then, you know, it made perfect sense. It made perfect sense. And when you get to CMS, I think you'll understand how it made perfect sense and including how the existence of the pandemic cut. So what's interesting about this is the pandemic, the fact that this was taking

place in a pandemic, that this awful pandemic where more than 800,000 Americans have died, did factor in these decisions. These cases were not decided with the pandemic in nobody's mind. sided with the pandemic in nobody's mind. And I think that's a very interesting, but the way that it cut is very interesting. And here's the way that it cut. And this is in the CMS case. This is a quote, the challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. That's OSHA case. That's the OSHA case. So what they're saying is we recognize the pandemic, we recognize how serious it is, but the existence of a pandemic does not mean that the law means something different now. And then here's the second sentence. At the same time, and here's the institutionalism leaking in, Sarah,

such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long recognized to have. That's CMS. So what they're saying in CMS is if you thought we might use this case law to kind of further pull back agency discretion, not during a pandemic. Not during a pandemic. We're not going to do that during a pandemic. So it's interesting to me, and this is sort of the institutional, prudential, equitable side of all of this. That's where it fell out. It was, okay, we're going to grant agencies discretion that's traditional, and we're not going to trim that back during the pandemic. But here's what we're also not going to do. We're not going to give them more

discretion than is traditional. We're not going to give them more discretion than the statute gives them. That's how I feel like those two sentences really work together to explain both cases. And that's a good segue into the concurrence from the OSHA case, because it was a weird concurrence in some ways. The concurrence at no point disagrees with the per curiam. There's no daylight. It really looks like they just wanted to use the term major question doctrine, which is great. the the concurrence starts with the very question that husband of the pod said this case was about the central question we face today is colon who decides so when i say that the pc is ben flowers the concurrence is husband of the pod um just

kidding it's definitely justice gors. I'm not taking anything away from Justice Gorsuch. Go stritten. Go stritten by him. Yeah, right? No. Okay, so reading a little bit here. The court is not

a public health authority, but it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution

and the laws of the land. Cough, cough. We're looking at you, Justice Sotomayor laws of the land. Cough, cough. We're looking at you, Justice Sotomayor. It did not have the cough, cough. Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other, it must also act consistently with the Constitution's separation of powers. And when it comes to that obligation, the court has established at least one firm rule, quote, we expect Congress to speak clearly if it wishes to

assign an executive agency decisions of vast economic and political significance, noting that Congress has adopted several pieces of legislation since the pandemic started, none of which afforded OSHA or any federal agency the authority to issue a vaccine mandate. Indeed, the concurrence notes, a majority of the Senate even voted to disapprove OSHA's regulation. It seems, too, that the agency, this is, by the way, a line like buried in a paragraph, but it's interesting. It seems, too, that the agency pursued its regulatory initiative only as a legislative, quote, workaround. Wah, wah, wah. Something that actually was not brought up a whole lot, but that everyone, I think, kind of feels in the background of this case. And so many of these executive power cases, whether it's DACA, DAPA, census, anything else,

you couldn't get Congress to act when you wanted them to. They wouldn't pass the legislation. You don't have the majorities. They won't get rid of the filibuster. Whatever the problem is, the social pressure is built and built. And so you decided to like, I don't know, let's see if this flies.

And also, this made me wonder how much they're on Twitter. Because Ron Klain, Biden's chief of staff, retweeted a tweet that said this, OSHA doing this vax mandate as an emergency workplace safety rule is the ultimate workaround for the federal government to require vaccinations. Oh, I mean, they're quoting someone else quoting that. There's a citation for the workaround quote. for the work quote yeah yeah it it came up um okay so then justice gorsuch always the professorial type asks a rhetorical question why does the major questions doctrine matter he'll tell you it ensures that the national government's power to make the laws that govern us remain where article one of the constitution says it belongs with the people's elected representatives

if the administrative agencies seek to regulate the daily lives and liberties of millions of americans the doctrine says they must at least be able to trace that power to a clear grant of authority from congress and then for our law students listening, he does a nice side-by-side of non-delegation doctrine versus major question doctrine. Oddly, I will tell you, I did not think it was the best explanation of the difference. And there must be a reason, because to me, there's a very simple explanation of the difference between the two. Non-delegation doctrine is that Congress can't give OSHA the power. Major question doctrine is that Congress didn't give OSHA the power. I could write this in one sentence, maybe like just a semicolon is all I need.

He goes into a little more detail, almost merging the two, which I think is intentional, but this next paragraph kind of tells you why. On the one hand, OSHA claims the power to issue a nationwide mandate on a major question, but cannot trace its authority to do so to any clear congressional mandate. On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority. So why do the two feel a little less distinct from Justice Gorsuch's pen? Because I'm not sure he wants them to be all that distinct. because I'm not sure he wants them to be all that distinct. He wants this to be in one ball because major question doctrine had previously, people were pulling it into that ambiguity area that the terms need to be ambiguous before you can apply major question doctrine.

And Justice Gorsuch, the purpose of his concurrence here, again, co-signed by Thomas and Alito, is no, no. Non-delegation, sorry, major question doctrine really is in the same family, lives in the same house as non-delegation doctrine. Your ambiguity doctrine, whatever that may be, not this. Major question doctrine is its own big monster thing like non-delegation doctrine. So long live major question doctrine. It has arisen in a major way for the first time. of note. One is, I think, hidden within this, well, not really hidden, just right there within this, is the notation that basically, if you're a state government, have at it. Now, that's not to say that any kind of vaccine mandate crafted in any particular way is going to pass Supreme Court muster. But Gorsuch here says there is no question that state and local authorities possess considerable power to regulate public health. They enjoy the general power of governing, including all sovereign powers envisioned by the Constitution and not specifically vested in the federal

government. So this is what we were talking about last week, or yeah, no, on Monday, when we talked about the police power subject. That's what you're talking about, the general power of governing, that police power. And so there's pretty clearly a roadmap here for state governments if they want to implement mandates. And I thought that that was interesting that he went at, it was a little bit of a civics lesson. And I think we know why that civics lesson was given was because of the, I think perhaps because of that police power exchange with Justice Sotomayor. So I thought that that was very interesting that he, that that was in his concurrence, this sort of civics lesson that

acknowledged the power of the state. And the other thing, going back to the majority, it's interesting that the per curiam opinion noted that there might be other workplace environments like meatpacking. And they actually used the example of meatpacking to contrast it with, say, a lifeguard. And because I think it is the case, there are certain circumstances where you could say that there are particular circumstances and factors about this particular workplace that enhanced the danger of COVID far above and beyond, or significantly or materially above and beyond the background danger of COVID just from living in these United States. But that wasn't the mandate. It wasn't aimed at those jobs that are particularly dangerous. I don't know if there's, you know, just to make

one up, Sarah, if you're going to talk about one where perhaps the nature of the workplace could, could create a danger. If you're like a halitosis tester, you know, could you imagine? What a terrible job. A 100 person, a 100 person company smelling people's breath. Can't even begin to imagine. But anyway, if you have a workplace that places people persistently in close quarters that dramatically increases the risk of the particular illness, then maybe you've got a better chance. And I would say you definitely

have a better chance, but that gets us all the way back to that blunderbuss point, which is, well, you had employers that were like that in this mandate, and you had a lot of employers that were not like that at all. Hence the lack of discrimination, hence the blunderbuss. I will say, let me read you part of the dissent that was interesting in part because it felt very textual. OSHA has power only to protect employees from workplace hazards. But as just explained, that is exactly what the standard does. And the act requires nothing more. Contra the majority,

it is indifferent, the statute, is indifferent to whether a hazard in the workplace is also found elsewhere. The statute generally charges OSHA with, quote, assuring so far as possible, safe and healthful work conditions. That provision authorizes regulation to protect employees from all hazards present in the workplace, or at least all hazards in part created by conditions there. It does not matter whether those hazards also exist beyond the workplace wall. That is interesting to me because the basics of the dissent versus the majority are Congress didn't specifically give OSHA this power, if you're the majority. And the dissent is Congress didn't not give OSHA this power.

And really, you again have both sides arguing over the text, not Congress's intent, by the way, nobody's looking at the congressional record. Big picture, this is another one of those cases that you just see as a huge win for legal conservative philosophy pre-common good constitutionalism. millions of American workers, it is no more than reflects the scope of the crisis, says the dissent. It is perverse, given these circumstances, to read the act's grant of emergency powers in the way the majority does as constraining OSHA from addressing one of the gravest workplace hazards in the agency's history. The standard protects untold numbers of employees from a danger especially prevalent in workplace conditions. it lies at the core of Ocha's authority. It is part of what the agency was built for. Interesting, given how breathless and agitated the justices seem during the argument, I will say that the dissent to me

did not read that way. Maybe it's because it was Breyer, but it was a very calm, well-reasoned, here's our case. We disagree. We dissent. And I think you might have seen more urgency if the CMS case had come out differently. Oh, so speaking of CMS, let's transition to that a little. 5-4 with Barrett as the four with the conservatives, the chief and Kavanaugh with the three liberals. The first, I believe, 5-4 decision we've seen Barrett going that direction. And if you remember in talking about our 3-3-3 court, despite the fact that the OSHA case was 3-3 333, we said we don't know yet what kind of

Justice Barrett's going to be and where she's going to fall on that institutionalist axis, regardless of where she falls in the conservative axis. We think she's a quite conservative justice, but that institutionalist axis could put her with the chief and Justice Kavanaugh. So very interesting to see her on the CMS case on that side of the ledger. David, speaking of blunderbuss, I found another word that I didn't know. I like on this podcast how I just admit how I don't know words. I'd like to say I got an 800 verbal on my SAT, so I do know words, but obviously I don't know as many words as some people. I'm reading now from Justice Thomas's dissent. The government has not made a strong showing that this agglomeration of statutes authorizes any such rule.

And I said, agglomeration? In the context, it looks like conglomeration would work just as well. What does the word agglomeration mean as to be distinguished from conglomeration? And this took me down a heck of a rabbit hole, David. Interesting. I don't feel like people do really know the difference. Let me read you some differences that I've read. Agglomeration is a collection of unrelated items. Conglomeration is a collection of related items. That felt really good. I was like, oh, that's very clear, actually. And I love agglomeration. And that can move into my everyday usage.

But that was from like a random website that's like one of those up or down votes. It's basically urban dictionary for big words. So that's not an authority of any kind. And when I went to Merriam-Webster, this distinction is not clear at all. Merriam-Webster, agglomeration, the process of collecting in mass, a heap or cluster of usually disparate elements, kind of close, a large, densely, and contiguously populated area consisting of a city and its suburbs. So I was with some friends and I was like, does anyone feel like they have a good handle on the difference between agglomeration and conglomeration? And a person walking by said, sounds like they just needed a synonym because they're using some other word down the way. I swear to you, David. Okay,

let me read you the sentence again. The government has not made a strong showing that this agglomeration of statutes authorizes any such rule. Two paragraphs down. The government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate. Changes my whole view of the whole thing. This is what happens when you only have a week. It hasn't even been a week, has it? Almost seven days. This is what happens when you only have seven week. It hasn't even been a week, has it? Almost seven days. This is what happens when you only have seven days to write. Some clerk didn't catch that. They have the same sentence in there, except in one, it's hodgepodge of provisions. And in another, it's agglomeration.

And I don't know which one's the clerk and which one's the justice, but I'm fascinated. Sarah, that's a rabbit hole. Thank you. Sorry. Yeah. I had Peppa Pig playing. The brisket was content for a few moments, and I just went. I dove right down the hole. No, I like it.

I like it. That's what is distinctive about advisory opinions. You're going to get 20 minutes on the opinion and 40 minutes on agglomeration. And it's going to be awesome. I'm going to be insufferable when Scott gets home because in my everyday, like, what do you want for dinner? Somehow the word agglomeration and blunderbuss are both going to be used. Oh, I love it.

I love it. All right. So more on CMS. Oh, I love it. I love it. All right. So more on CMS. So what I thought was interesting about CMS, I think there are a couple of big distinctions here. Is nothing that really even looks like police power in the way that the OSHA mandate could look a lot like police power or a general public health measure? This is a condition attached to funding. No, it's much closer to highway funding connected to the drinking age. Right, exactly. There is a public interest here that is very strong, connected precisely to funding, connected to a series of regulations that are really expansive about the way in which healthcare workers do their jobs. And so that was something that was interesting to me was when you're starting to talk about the labyrinth of regulations that govern here, you're talking about all kinds of statutory,

or all kinds of regulations that are aimed at preventing infection. So hospital employees have to wear gloves, sterilize instruments, wash their hands in certain ways and at certain intervals. And none of those things were challenged. Now, the other interesting thing was, well, if you say, well, then vaccination is a step well beyond the scope of the normal regulatory framework, they had an interesting paragraph

here. Vaccination requirements are a common feature in the provision of healthcare in America. Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella. As the secretary explained, these pre-existing state requirements are a major reason why the agency has not previously adopted vaccine mandates as a condition of participation. So in other words, the reason why CMS hadn't done this before is workers were already under an array of vaccine mandates. This is a new disease

and state law, state regulations that would fill that hole, close that gap might not necessarily exist. And I think that when you look at it in this circumstances, a regulation attached to money, that these regulations have traditionally empowered a high degree of control over the way in which workers limit exposure to infection, and that the hole that had previously existed regarding vaccination had been largely closed by state and local regulations, this decision makes a lot of sense. And you can begin to see how it is different in kind from the OSHA case. It is just a fundamentally different case in many ways. It is, although I did find it to be side-eye-y that a lot of the theory on the agency power side was, well, that agency's been using a lot of power.

So isn't that just a perverse incentive for agencies to try to expand their power as quickly as possible so that way they can point back and say, no, we've been doing this for years? Because part of the OSHA problem was they'd never done anything like this. Okay, so what OSHA learned from this is that we need to do more stuff and see if we can get away with it. Yeah. You raise a very good point there. And that's where I think the pandemic came in. Okay. That's where I think, when you say we've been talking about these cases previously to say, look, they're going to be decided on the basis of the interpretation of these relevant statutes. And where are you going to, in what circumstances are you going to start to pare back

agency discretion when agency discretion has been exercised to a pretty considerable extent for a pretty long time, as in CMS. And I could easily imagine as I was actually I was talking to another attorney this afternoon, we're going back and forth about the CMS case. Interesting and probably correct is that if you actually took the four dissenters and Justice Roberts and Kavanaugh, I think CMS might be 6-3 against CMS, but for the pandemic. That's how I think the pandemic played in here. They weren't going to allow the pandemic to extend the reach of a statute and a regulatory regime, but they were not going to start to pull back the reach and discretion of an agency in the middle of the pandemic. I know I've said that before, but I really, if I had to say, why are Roberts and Kavanaugh

departing from the other four on this case? I just keep going back to that idea and that notion. And of course, we don't have Roberts or Kavanaugh, their writing under their names on any of this, which is interesting as well, to the point that technically on the OSHA one, we don't know whether they're in the majority or dissent. One or the other could actually have not been in the majority, but just not written a separate dissent and not joined with the three dissenters. And we would never know that. A small point, but a very unlikely point to me, but goes to the fact that like, yeah, it would have been nice to see like just Roberts and Kavanaugh. We just want you to tell us how

you see these two interacting, like the play in the joints between the two, frankly. Um, no doubt. I think we will down the road because of course, as we've said many times, this was on an emergency posture. It's not the end of either of these cases. They go back. The only thing the court has said is that they believe what the likelihood is of success on the merits in either case, not actually the success of the merits in either case. Yeah, no, I agree with that. And I thought the dissent scored some points in CMS. I thought Justice Thomas's dissent did a pretty good job of showing, wait a minute.

These regulations that have been promulgated have been promulgated under some pretty vague, with some pretty vague statutory grants. So the CMS has really taken this broad language and run with it. And, you know, if you're going to apply major questions doctrine, if you're going to look at, if shouldn't Congress speak clearly, if it's going to delegate a big chunk of power, it scored a lot of points in that regard. And that's why I think that the idea that this is a stay, it's preliminary, where the equitable kind of analysis can much more come into play. I think that's why two peeled away was much more in the equitable side of this. How very Y-axis institutionalist of them. Yes. Yes, exactly. So it would not surprise me, Sarah. Here's what would

not surprise me. It would not surprise me if, let's say, this case finally works its way up completely on the merits in 18 months or two years, and the course of the pandemic is maybe very different at that point in time, and the balance of the equities regarding that level of discretion begin to change, it wouldn't surprise me if this outcome reverses itself. Wouldn't shock me. Might surprise me a little, but wouldn't shock me. Think I'm crazy? Usually. Okay. Hmm, usually. Okay.

All right, David. That, I think, was a good emergency podcast. It's going to make a very long Frankenstein Monsters podcast. But you know what? Our podcast saves lives, as you're about to find out. At Real Canadian Superstore, our colleagues collectively speak over 100 different languages and counting. We pride ourselves on items from different parts of the world.

From hard-to-find specialties to tastes that'll remind you of childhood. So welcome everyone. Come shop the world right here in our aisles with more ways to save at the Super Welcome Store. Real Canadian Superstore. Well, this is going to be an interesting podcast because we're going to, we don't have a lot of really cool cases to talk about. In fact, we don't have any cool cases to talk about. There was a Supreme Court opinion that came out today, and it began like this.

This case concerns retirement benefits due under the Social Security Act for a retired military technician dual status. Close tap. I stopped reading at that point. I'm sure that's very important to actually a lot of people, but it's not to us. That's the truth. Yeah, yeah. That's just the truth. Yeah. Yeah. That's just the

truth. So with all due apologies to Mr. David Babcock, we're just going to pass on that. And instead, what we're going to do is we're going to talk about some questions, some listener questions. And you've got some good ones. But before we get to the good listener questions, got some good ones. But before we get to the good listener questions, at the risk of just absolute ridiculous self-promotion, Sarah, can you explain how this podcast saved a human life? It did. I was very skeptical when I saw the subject line, the long podcast saved my life. But I thought it was metaphorical, maybe. Just know, just like, oh, it saved me. Your words inspired me. But no, it was literal.

So I'm just going to read this from Caleb, not legendary producer Caleb, legendary listener Caleb. Your latest podcast ran one hour and 25 minutes long. And David, you and I, we try not to do podcasts that long. We try to respect our listeners' time, but we thought because of the argument, and the argument was four hours long, it actually was respecting our listeners' time to dive in a little. So it was an hour and 25 minutes long. Had it been four minutes shorter, I would have spent this morning covered in third

degree burns or worse. Let me explain. Last night, I was outside my apartment complex when I saw a large bonfire at our apartment fire pit. There was no one attending it and it seemed like a perfect place to listen to the latest advisory opinions podcast. I sat by the fire and noticed a bottle of what seemed like lemonade on the stool next to the flames. I planned on using that lemonade bottle to put the fire out when the podcast was over. With four minutes left on the podcast, a couple came and sat next to the flames. I planned on using that lemonade bottle to put the fire out when the podcast was over. With four minutes left on the podcast, a couple came and sat next to the fire. They were the ones who started it and had returned now after their dinner. I started to leave when the man, beer in one hand, picked up the lemonade bottle and poured it over the fire. The fire erupted, growing three or four times the original size.

I screamed, whoa, what is that? I'm sure listeners can guess. To which the man, beer in one hand, responded, gasoline. Had the podcast been four minutes shorter, I would have taken that gasoline bottle, which was left next to the fire without a cap, by the way, and carefully poured the contents of it onto the fire. No one pours anything on a

fire from far away, so I would have likely gotten very close to the flames as to have the most accuracy with the lemonade bottle. This would have inevitably led to a large explosion and likely a hospital trip. Truthfully, advisory opinion saves lives. I expect nothing less from the flagship podcast. I am sure the Dispatch podcast has never saved anyone from such a trauma before. Take that, Jonah. That's one of my favorite emails that we have ever received. Because he's right. I mean, he's right.

Think about it. How many times have you put out a fire where you've had a bottle of water, you know, maybe it's smoldering, you've got the coals and you get close and right over the top of it, right over the top, and that's gasoline. That's not even lighter fluid. Like lighter fluid, at least as a more controlled kind of explosion, but gasoline, my goodness. So, well, I don't know about you, Sarah, but I feel pretty good about us right now. As you should. All right. We have questions. Yeah. So interestingly, this question, the first one, which is, I thought, so much fun when I started looking into it, is also from a Caleb. Also, not legendary producer Caleb and not legendary

listener Caleb. Different Caleb. I was listening to the oral argument in the OSHA vaccine mandate while working this afternoon, and it finished with the hitting of a gavel. This made me wonder, where does the use of the gavel come from? Why don't they just say the case is submitted and then get up and leave? Are they legally required to use a gavel such that a decision or adjournment is only official once the crack of the gavel sounds? I genuinely know nothing beyond the fact that I kind of wish I had a gavel of my own. Well, Caleb, if you were an 18 month old living in my house, you would have a gavel of your own. It would be a very, very small gavel and it would say

Supreme Court on it. And then you would use it to bang on everything. So one might imagine that perhaps the gavel was just a stick that toddlers used and then adults continued using, but that is not the case. The history of the gavel is nothing short of fascinating and a bit mysterious, David. Yeah. So gavel has always been a legal term. The earliest references from around 725 AD are to gavel kind, and I'm going to read here from an academic paper from Australia. That was a system of fealty and land tenure, then operative in certain parts of what would eventually become England. It was not until much later, however, and far away from the historic roots of the common law that the word would start to take on the meaning it has today.

But the precise etymology remains a mystery. I'm going to get back to that in a second. The contemporary gavel's roots are most commonly attributed to America. That's going to turn out to be quite true. Where the term begins to appear in reference to a hammer or mallet wielded by some figure of authority around 1860, according again to the Australians, before becoming associated so universally with judges like it is today. Worth noting, the gavel is kind of everywhere, of course. it's the Supreme Court, but both houses of Congress also use it.

And it's all over TV. Now, you will not find them in courts or legislatures in other similarly situated countries, the UK, India, Australia. But it's not just our like legal dramas that have gone worldwide that have created everyone sort of knowing what a gavel is. In fact, there was a gavel on the bench at Nuremberg, which is like a fun little trivia fact that you can use with your friends. So let's go back to the etymology issue. It appears that basically, okay, back in the beginning of the country, before the internet, I suppose, George Washington, Ben Franklin, I'm now taking this from a different academic paper written in America. They were all members of the Masons, a fraternal organization. It had taken off in Europe in the 1700s, but jumped across the pond and like really took off here. Talk about gasoline. A professional, a way for professional types to pass the time before golf took over,

as this writer says. The Masons were big on symbolism and rituals, as any Dan Brown book will kind of fill you in on if you need more. But they really traced their roots to the Stoneworkers Guild of the Middle Ages. Perhaps you can see where this is going. The masons, therefore, would use what would amount to like a mallet that you would have used to hit hot iron with. And that became the gavel because they were super into like stuff they thought, you know, stone workers would have used in the Middle Ages. That is interesting. That is interesting.

That's how we believe the gavel became used first in Masonic lodges. But then because like George Washington, Ben Franklin, all of these people who were in power at their Masonic lodge, it transfers over into American high forms of government, legal congressional, and then it transfers over into TV drama. That's fascinating.

So no, you do not need to bang the gavel in order for anything officially to be done. No, no, it's just a habit. It's just a habit. It's a habit and a tradition, which this is absolutely, well, it's not entirely off topic, absolutely, well, it's not entirely off topic, but I really had no idea what Freemasonry was at all for most of my life. And it's been so long since I've read about it that I still not quite sure what it is. But I do remember being absolutely captivated by part of Leo Tolstoy's War and Peace, where one of the main characters dives into Freemasonry and Tolstoy spent a bunch of time

talking about it. And that's one thing that is great about some of these really huge old novels. They just go off on a digression. And it can be fascinating. I don't know if you've ever read unabridged Les Miserables, it is, it is not just a novel. It is a discourse on contemporary French politics and French Reese in, in the battle of Waterloo. I mean, but also what a normal day in someone's life would have been like, that's why I sort of like some of the British ones, although I'm still confused on what time they were going to bed.

Like, are the times wrong? What time are they having dinner? Because if they're not using the same times that we are, like they were staying up really late for some of these dances, you know, like middle March, for instance, which is sort of a discourse on what we would sort of consider middle income England, sort of upper middle class, maybe England, and a little bit rural, not London, not Jane Austen types all the time. Why are you up so late? Two, three in the morning? That's a lot of wax you're burning, a lot of oil, et cetera. That's just expensive. You know what? I guarantee

you that one of our listeners is an expert on the daily life habits and schedule of a middle class British family in the 19th century. So please send us an email. I've even listened to an etymology podcast, Something Rhymes with Purple, which was recommended to me by an AO listener. So here's me recommending to AO listeners a podcast that was recommended to me by an AO listener. Something Rhymes with Purple. It's these two British folks, and they talked about the etymology of supper, which obviously comes from to sup and sort of where all that came from. But the meals refer to different things over there, and it's been so lost in translation over here, I remain a bit confused. All right, next question. Well, this was a question from me. If you remember, the term blunderbuss came up at the argument, and we discussed that you knew what a blunderbuss was, but that I had at best only heard it as an adjective and didn't know that it was a noun. And I was like, how did Ben Flowers, the Ohio Solicitor General, like what, is he just watching a lot of Looney Tunes

and then Googling, hey, what's that thing they're holding? Well, thankfully I got a couple emails about this and perhaps some inside information. It came up in a moot. Really? And that's, he, I guess, came up with it at the moot. But nevertheless, everyone was like, ah, yes, perfect. But I am also told on good authority, perhaps from people in that moot, that they also did

not know that it was a noun referring to that gun. They also just knew it as an adjective and that it was a good adjective, but didn't know the full etymological history of the adjective, a blunderbuss approach. Interesting. So I've actually thought about this blunderbuss thing because I've actually used that in exactly that way in legal argument going back for years. And I just thought, you know, a lot of lawyers, especially lawyers who come up like I did, I did constitutional law. But for many, much of my early practice was in state court using state common law. And state common law has, you're reading an awful lot of 19th century cases, early 20th century cases. And so running across a term like blunderbuss is completely normal.

And it's often also how lawyers will sometimes seem to have almost an anachronistic language on occasion is because you would not believe, especially if you're working in state courts, how much 19th century English you're reading. It really is pretty amazing. And it just kind of becomes a brain worm. It sort of just gets in there. Well, it turns out that our Mr. Flowers also is a collector of old dictionaries. And so on top of reading those state court opinions, which I'm sure he has to do a lot in Ohio, perhaps he had found it flipping through his old dictionaries. I'm told he uses words, older words, weirder words, more obscure words, more than the rest of us. Interesting. Well, that's a good backdrop. Okay. Do we have more questions, observations? For sure. And I'm sorry that this is not the weightiest

podcast listeners, but- Look, it's going to get weightier. Give me a break. Okay. Let's get weighty. We're getting into it. All right. Let's get weighty. Okay. Here's a weightier one. Here's a weightier one. There was a suggestion in a guest essay at the New York Times. Here was the headline. Joe Biden can't save Roe v. Wade alone, but he can do this. And it was written by David Cohen, Greer Donnelly and Rachel Robichet. and apologies if I'm butchering your last names, but one of their suggestions was that the federal government buy the land that is currently used by abortion clinics in the state of Texas, for instance, and then treat them like military bases or post offices, et cetera. And that would get around any state laws to the contrary.

And so a reader sent this to me and said, is this true? Would this work? That is, I missed that. I missed that. Now it's a very interesting, in theory, if you federalize and you create federal abortion clinics in the state of Texas, in theory, they're going to operate outside of state, not just in theory. In fact, they'd operate outside of state control.

Yes. I mean, very few state civil laws, some do, but not that many state civil laws apply on federal land. It's certainly not SB8 as it's currently formulated. And so their point is the Biden administration could lease federal property to abortion providers, allow them to, this is their suggestion, operate out of a federal office building or a mobile clinic that they then put onto federal land. And SB8 would no longer apply. Here's the thing, though. They say the Biden administration could do this. So they would need to take then existing federal land and move the abortion providers to that land. I do not think they could do the reverse. Well, maybe they could, but it would be

much harder to do the reverse and turn the abortion clinics into federal land, like for the abortion clinics to sell their land to the federal government and then have it leased back to them. That would potentially need congressional involvement, although then we get into some really crazy GSA stuff. GSA is the Government Services Administration. Yes. Yeah. You know, the interesting, which when you're talking about the acquisition of land, as, as, as unfortunate, it is very unfortunate, Sarah, that this podcast did not exist when the Trump administration enacted its wall building executive order because, oh my goodness, the complexity of the use of military funding, pre-already allocated and requisitioned military funding, allocated and requisitioned military funding and diverting it from its requisition purpose or its appropriated purpose into a different purpose, all possible, all highly technical, all very

interesting, at least to me. But my first question is, what's your regulatory authority that you're relying upon as opposed to statutory authority, which would mean Congress getting involved. But then the other quite practical question is, all of a sudden, let's say you're an abortion rights supporter and you have saved abortion rights from SB8 by federalizing abortion, and then you lose the 2024 election, And then suddenly every single clinic is shuttered in the whole state that's been federalized. Well, that is an interesting point there. Yeah.

Just immediately. They're all just closed. And because there was no affirmative obligation of the federal government to operate abortion clinics. And so- No, but if they signed a 50-year lease with the federal government to operate abortion clinics. And so- No, but if they signed a 50-year lease with the federal government, I don't know. Yeah, it would get complicated.

And as they also point out, we're talking about how federal civil law doesn't apply on federal, sorry, state civil law doesn't apply on federal land. Very different than state criminal law. That gets much messier as well. But they do point out, and I think this is worth mentioning, federal law prohibits the use of federal money for abortions, something Congress could change. But a lease would not be governed

by these rules because the abortion provider would be paying the federal government, not the other way around. I'm not sure it's quite that simple on that, but I appreciate that they flagged the issue. Yeah, that is interesting. I'm actually surprised that I missed that op-ed. But yeah, that is interesting. But the immediate answer is, one, what's your regulatory authority for that? Because it is a tough, that is an area of law, the land use appropriations that you need to walk into with humility. I certainly would, as we are in this podcast, by telling you that like, it messy, but creative. Right.

Exactly. Exactly. Now that's weighty. That's good stuff, Sarah. All right. Now I've got three unweighty things. Okay. One, someone wrote in and said that they were deeply disappointed that in our discussion about Navy SEALs needing the vaccine and what the compelling government interest was that we did not refer to them as a basket of deployables. That's good. That's the kind of content that gets you up in the morning right there. That's good. Similarly, perhaps, this subject line just cracked me up, Similarly, perhaps, this subject line just cracked me up, exciting portmanteau opportunity. When a moot has to be moved to remote, can we call it a re-moot? Oh, no.

Now, that's about 90% short of basket of deployables, I'm sorry to say. All right. Last one along these lines so a another great listener of the pod his name is uh wade and wade had emailed last year about some interesting murders that had happened where he grew up in meridian, Mississippi. I forgot about this and then slandered Meridian, Mississippi on our podcast, David. Ray, those Navy SEALs. And so he told me that I hurt his feelings with the disparaging comments

about Meridian, Mississippi. Quote, you have no idea what you missed. Now you'll never know the stories of the three-foot building and the gypsy queen. I will assume your comment was made in ignorance and continue to listen. Well, thank you, Wade. I appreciate your generosity of spirit. I apologize for what I said about Meridian, Mississippi. It was unfair, especially because my whole point was that I didn't move to Meridian, Mississippi to follow the Navy pilot. So how would I know how lovely Meridian,

Mississippi is aside from the fact, again, that Wade initially emailed me about a string of murders in Meridian, Mississippi, but that's okay. Against a lovely backdrop. But it gets a lovely backdrop. And so I told Wade this, but I'm going to tell listeners this, And so I told Wade this, but I'm going to tell listeners this, that Scott and I once took a drive from D.C. to Texas. And I took some pictures along the way. And I have five of those photos hanging in our staircase. Hanging is actually the wrong term.

They're like leaned up against the staircase, to be honest. But one of them is from Mississippi. And it's one of my very favorite ones. It's beautiful. It's this old gas station that had clearly been shut for decades. And it's just sort of there with like grass growing all up into it. And it's super cool. And I think Mississippi is a beautiful place to drive through with very tasty food, though I still have never been to Meridian. Beautiful place to drive through with very tasty food, though I still have never been to Meridian. Now, I will say this. I take a backseat to no one in my, A, my affection for Mississippi, and B, my time spent there, other than living there. My grandmother's from Bahia, Mississippi, just south of Memphis.

I asked Nancy to marry me at Bahia, Mississippi. Whoa. Spur of the moment proposal. I had no ring. We had just gone for a walk. We were literally sitting by a PVC pipe that was spitting storm drain water into some sort of stagnant pit. Musical accompaniment? Yeah.

Yes. It was lovely. In that setting, I just spontaneously asked her to marry me. Did you get down on one knee? No, we're sitting on the sidewalk. So you had no ring, no knee, no ring. You were just like, Hey, the weather's pretty nice today. Also, do you want to get married next week? Only a little bit more serious than that. Like only a little, it was just in the flow of the conversation. It just flowed. He just flowed. And she flowed. It just flowed.

And she sat there for a minute and she said, yeah, I'll marry you. Like that was literally, I think that was the literal quote. Yeah, I'll marry you. We now keep in mind, Sarah, we'd been dating six weeks at this point. I got to tell you, if Nate comes back and ever says, I proposed this week, I've known her for six weeks and it just happened in the flow of the conversation. It was a good conversation. I will this week. I've known her for six weeks. And it just happened in the flow of the conversation. It was a good conversation. I will remember this.

I will. And I think your marriage is incredible. But I will have questions for my son. It was a good guy. Well, I'll say this. Now, one of my kids is married. But if the other two come back and have the same story, I'll have questions as well. But 26 years later, almost, it's a great story.

I'll have questions as well. But 26 years later, almost, it's a great story. Well, Wade says that if you are driving through Meridian, that you should stop and eat at Weidman's, that it is the oldest restaurant in the state of Mississippi. Interesting. That's pretty cool. Interesting.

But I was going to say, beautiful is not the word I've tended to use to describe Mississippi. With all due apologies. I think Mississippi is beautiful in the way that like Southern Gothic is beautiful. I mean, there are parts of Mississippi that are quite striking and beautiful, but like if I'm driving through Mississippi, I am not saying the same things about the view that I am when I'm driving through Montana. Like that. See, I'm driving through Montana. See, I think Montana can be quite sparse, to be honest.

All right. Well, again, I apologize to our Mississippi listeners, but we've got a weighty question. We've got a weighty question. this listener is in Oregon and a bill SB 197 became law effective January 1st of this year. So the law requires, it basically folds in private schools into what had previously been required for public schools around things like domestic violence, teenage dating violence, sexual assault. It requires private schools to have policies in place to deal with these things and largely is amending their current public school section to just add in like also private schools, also private schools when it comes to these issues. But one of the things they require is that you have a poster up in the school. And so this listener was asking, I take no issue with anything we need to

teach or be doing about these important topics. I'm not pro-domestic violence or pro-sexual assault in any way. Which, first of all, I love that an advisory opinions listener is curious about the law, not because of their own personal position on the underlying issue. And this is a fun thing to be curious about. So here's his actual question. Two, I'm not a lawyer, but this seems like it's unconstitutional by violating the First Amendment.

I suppose making curriculum requirements is normal or common, but specifically this section three requires that private schools either use a provided poster or design their own with specific speech on it. Isn't that compelled speech? Rather like requiring a topic to be taught to a standard, it requires specific messaging and that you hang that messaging in the classroom. He says, am I wrong on this? Happy to be told so. And David, this is super interesting because we had talked about that, that compelled speech can seem really obvious when you're on an obvious side of that line. But this is a private organization being told by the government that they must put up certain speech in their classroom. And he, in fact,

sent me an example of a poster that was put up in one of these private schools. They opted clearly to make their own poster. It says, stop domestic violence. We can help. Here are the following free services, a safe shelter, advocacy, counseling. It has a 1-800 number on it as a hotline. It also has a website and then it has the organizations they have partnered with to provide this. Now, again, no question that all of the schools support this and they're happy to put up posters. Probably a lot of them already had posters up like this. Maybe this one was one of them. But the point is now the government is compelling them to do that. Does this violate the compelled speech standard in the same way that we've been talking about how the government can't force Twitter to keep up white nationalist speech? Could the government

force, could a state government force Twitter to, you know, put up as every 10th message a stop domestic violence, here's a 1-800 number message? Yeah, that is very, very interesting. And what's fascinating about this is that there are many messages that the government does require private establishments to, for example, if you've worked, gosh, I mean, virtually anywhere that has like a break room at an employer over a certain size, what will you see hanging on the wall that nobody really ever looks at, but you'll see various EEOC mandated or state human rights law mandated posters outlining some basic rights you might have as a worker.

And I remember seeing those going all the way back to my first jobs selling guns at Walmart in Georgetown, Kentucky. I mean, there have been posters. Now, the interesting thing is, also another form of compelled speech that we've talked about is ingredients or calorie counts that you're telling a commercial establishment. You have to list your calorie counts or you have to list your ingredients. Mandatory disclosures when you're advertising pharmaceuticals, which always crack me up. I mean, they're almost beyond parody at some point. You've got some guy here, take something, take Ketamax for, I just made that

up. I don't even know what that is. Take Ketamax for blood pressure and live your life to the full. And then you have Ketamax may cause while you've got somebody surfing or when- Always, always. Skyd surfing or when, you know. Always, always. Skydiving, surfing, paddle boarding. While you talk about, you may choke to death on your own vomit, you know, like it's, and that's a kind of compelled speech. But in all of those circumstances, what you have is it's a commercial speech. And so compelling, you have a commercial speaker and it's commercial speech. And so compelling, you have a commercial speaker and it's commercial speech.

That's part of the, that was a core issue at stake in a recent Supreme Court case involving pro-life crisis pregnancy centers. And the pro-life, this NIFLA case, pro-life crisis pregnancy centers, they were being required to put up signs saying, here's where you can get a free or a low-cost abortion in California. Well, they're crisis pregnancy centers. This was completely contrary to their messaging. They were being forced to advertise for free and low-cost abortions by the state of California. And the big issue in the case was what category of speaker was a pro-life crisis pregnancy center? Was this like asking a doctor to provide informed consent,

mandating that a doctor provide informed consent? Or is this more like mandating a Democrat say to the, mandating that the Democrats say where the Republican headquarters is located? provide an informed, you know, informed consent. This is much more like ordering an activist to give the opposing point of view to the subject of their activism. And it was a close case. It was five to four. And so, Sarah, if you're on the one hand, I'm going to be required to list my ingredients and put up my EEOC remedies if I'm subject to Title VII or the FDA regulations. uh, EEOC remedies if I'm subject to Title VII or the F, you know, FDA regulations. And on the other hand, I'm not required if I'm a private, um, if I'm a private, uh, entity that's not commercial and I can't be made to put up messages that are contrary to my point of view, where does this land in your, in your thinking? Yeah. So I think this is fine. I think it's fine for a few reasons.

One, I think it is not just much closer to, I think it is identical to EEOC notifications. Also, I think it helps that nobody disagrees with this. Nobody doesn't want to help prevent domestic violence or offer students information about what they can do to seek safety if there is violence in their home. I'm sure, again, I'm sure many of the schools already had things like this. It is more standardizing it that it needs to be a poster of a certain size and things like that. So it helps that no one's going to complain. it helps that no one's going to complain. But I do think it's a bit of a slope when you're telling private schools what posters they need to have up in classrooms, sort of like those break rooms. There's just a ton of posters in there that nobody reads. You could see a proliferation

of posters and that at some point the proliferation itself could be compelled speech. But certainly, you know, okay, so stop domestic violence, I think is clearly on one side, no problem, not compelled speech for a school, because of all sorts of missions involved that is part of the state, right? They have to be accredited as a sort by the state, etc. On the other end of the spectrum would be a poster that says, evolution is real. There is no fact-based reason to believe in creationism, like in your school. Now, on the one hand, we're kind of past that as a society in terms of the debates that we're having. Although, what was it, 2012, the Republican debate? That was a question that was asked. debate that was a question that was asked and in some ways marked the end of when they were going to have liberal moderators ask questions of conservative candidates because everyone's like why why are we asking this this is not on the front of any voters mind but nevertheless um so but what i think is interesting is again like could you force twitter to put up this message

even if it's controversial as a commercial enterprise, it is different than a calorie count, which is not related. You know, calorie counts related to you serving food. I actually think the calorie count thing is questionable, by the way. The ingredients less so, the calories more so. But on the other hand,, like I'm sure you could show that X percentage of people using Twitter are in a domestic violence situation and could really use this message. But as Twitter as a private business required to provide information to their users, not their employees. Um, I think the answer to that would be no. I think the answer to that is no as well. Because one of the things that Twitter does is it would be akin to requiring the New York Times to

give column inches or space. And it won't stop at domestic violence. Again, something we all very, very much agree with, want to stop. Twitter again, Twitter, Facebook, all these places actually dedicate tons of money to what we would consider pro bono activities for their own users. But if domestic violence, why not drug use? And then if not, you know, if drug use, why? And you'd end up again with the proliferation of posters, quote unquote. Right. I actually think if somebody wanted to challenge this, it would be, in my view, an interesting case. You think it would be interesting? I do think it would be interesting. It would be interesting for them in the media, that's for sure. They would-

Yeah. No, I don't think anyone's going to challenge it. Yeah. I don't think anyone's going to challenge it. But just putting on my lawyer hat here, let's just say that somebody came to me and they said, you know what? We're totally against domestic violence. We're totally against all of these things. But the that we're required to point students to is maybe teaching things or explaining, providing them with options that we think are... Oh, here's one. Let's imagine that somebody says, the school has a pro-life position

and the number says, if you call the number and say somebody's been a victim of sexual assault and they're worried that they're pregnant, they're going to point them towards an abortion clinic. Yeah, then it becomes much closer. I actually think the state of Oregon law, for what it's worth, allows you to put any, like it just has to be a number, a hotline number. You can set it up yourself.

But yes, if they mandated which hotline to call, that would is or is not constitutional. But it still just is. And it's there. And because people comply with it, you know, it's deemed to be binding. It's perceived to be binding. And it's relatively unobjectionable. And people just roll forward. And there's nothing wrong with that.

We don't need to challenge everything. But I thought that was a fascinating, I thought that was a really interesting question. All right. Ending on a substantive, but also fun note, a listener, I thought, sent a very helpful way to think about how the concurrences, opinions, dissents could all look in the OSHA case. And he used buckets after my own heart. So, I mean, really, it just feels like I have a podcast assistant and I just so appreciate that. This podcast assistant has a PhD and is an assistant professor. So he's a little overqualified, but nevertheless. So bucket one, He's a little overqualified, but nevertheless. So bucket one, Congress does not have authority under the Commerce Clause.

Which justices will sign up for that understanding? Thomas? Maybe Gorsuch? Maybe. Maybe. Second bucket, Congress cannot delegate that authority to OSHA. Thomas, Gorsuch, and then like, here's the big question, right? Alito, Kavanaugh, Barrett, like this is, you know, interesting. Number three, Congress did not delegate the authority to OSHA.

That's the major question doctrine thing, which we think is one of the two likely majority opinion outcomes. It's probably, I think, slightly less than 50%. If the mandate struck down, there'll just be a concurrence with people, but it's possible you get five votes on this. Thomas Gorsuch, Alito, Roberts, Kavanaugh, Barrett being the people you can pick among for major question doctrine. I do not think the chief will be in that group, but we'll see. Four, Congress did delegate this authority to OSHA, but it was not properly exercised here. And again, you still are really picking from among that six. That's the ETS authority problem. And that one you could get all six. But he says that he would, of course, like it to be number

one, that Congress does not have the authority under the Commerce Clause, something that really none of the advocates touched on because you don't need to reach it. If you get to Congress did not delegate this authority to OSHA, then you're done. And under constitutional avoidance canons, the only way you really get to Congress did not have this authority is if you answer all of the questions leading up to that the other direction. Congress did delegate this authority to OSHA. Congress can delegate this authority to OSHA, but Congress didn't have the authority itself under the Commerce Clause. Boom. But this guy says he understood why it wasn't argued really at all in the oral argument.

He says it would have been hard to begin, quote, may it please the court, Schechter poultry was egregiously wrong and so was Wickard for that matter. And I don't have a tattoo, David, but if I were going to get one, honestly, it might say that. That's glorious. I mean, that's a glorious sort of fantasy opening to an oral argument. One disconnected from any strategic reality or tactical reality when arguing before the Supreme Court. But this does raise something because after our last podcast, I went back and I looked

at some of the commentary that was critical of the strategy that was essentially, as we talked about in our analysis of the oral argument, just win the case. Win the case. Get a stay. And the argument was, well, you should have gone for more. You should have gone for the bigger constitutional win. And the fact that you didn't explicitly go for that bigger constitutional win is evidence that, you know, may mean you just don't get what you could have gotten. Okay. Your squishes. Your squishes. You didn't get what you, and then maybe, you know, the Supreme Court would have really reordered Commerce Clause jurisprudence? Maybe it would have, but if you just asked.

If only they'd asked. You know what's interesting, David, of the, I forget how many petitions the court got from the Sixth Circuit. Remember, there were like a zillion cases filed and they picked two. They picked Ohio and they picked Husband of the Pod. Other cases did argue that.

And they were silly because it's not teed up here. It's one of the reasons that Dobbs is so interesting as an abortion case, because it's hard to get a case perfectly teed up on the constitutional question that you want, but only the constitutional question that you want. Because if there's anything less than the constitutional question, they reach that one first. Here with the mandate, it's not a direct shot at Schechter or Wickard or anything else for that matter. And the people who tried to take that direct shot, well, the court didn't think it was a direct shot and they got knotted. They didn't get their case taken. Yes. I mean, and so I think there's a couple of things in play here.

One is the Dobbs case, and I'm glad you brought that up. The reason why, the reason why it created a degree of energy and interest in that case above and beyond any abortion case since Casey is that they took a case where the law was utterly inconsistent with existing precedent. Their existing precedent has to be altered in some fundamental ways if you're going to uphold the Mississippi law. And then if they just wanted to leave the Mississippi law alone, I mean, or leave the lower court ruling alone, all they had to do is just not take the case because the Court of Appeals had struck down the Mississippi law. So that was a very unique, that was an unusual situation. I'm going to say very unique. It was unusual because it absolutely teed up the key question. And this is why, for instance, Chevron,

Chevron, all these other doctrines that people want to attack, it's because it's hard to get one on Chevron, only on Chevron, where there's not some other APA problem along the way that they could think of it like, have I used my cranberry analogy on this podcast before? I think I have that David's face. He's like, all right, the cranberry analogy on this podcast before? I think I have. David's face. He's like, all right, the cranberry analogy. Yeah, let's hear it. The way you test good cranberries and sift them from bad cranberries is you put them down this wooden hole and they're slats fed into the hole.

And good cranberries bounce and bad cranberries don't bounce. But of course, you're putting a lot of cranberries down at once. So you need to give the cranberries more than one opportunity. So there's like five slats, like staircase, you know, stair steps into this wooden hole. And so it gives every cranberry five chances to bounce out of the hole. But if it doesn't, it goes down the hole. Basically, if you're bringing one of these, you know, you want it to be the constitutional case to get to Chevron, for instance, you've got to not bounce on any of the APA things that could get you there.

And it's really hard because there's a lot of good cranberries out there. And the other thing, yes, I like it. I like it. It's good. And the other thing is, it's also easy to forget that the actual, the oral advocate and the primary brief, the petitioner's brief and the respondent's brief, they are not the only briefs the court is reading. There's a lot of other people who are volleying arguments towards the court. So for example, there's a dispute

and part of the right-wing legal world as to whether or not the 14th Amendment actually prohibits, should be read to prohibit abortion. In other words, that the U.S. Constitution, the 14th Amendment, under its original understanding, actually prohibits abortion. Rather than being silent on abortion so that it is left to the states, that it actually protects life to such an extent that it prohibits abortion. And there's an argument about that. That is not the argument that Mississippi made to the Supreme Court. That's not Mississippi's argument. But there are people who submitted amicus briefs to the Supreme Court making that argument. So the Supreme Court has that argument before them. And so often when you're

talking about the litigants, the litigants are only a small part. They're the primary part. They're making the primary arguments. But the Supreme Court is receiving a volley of legal arguments that are being submitted lawfully according to the Supreme Court procedure and amicus briefs that they are reading. And if you think they don't read amicus briefs, they cite to them all the time about arguments that you may think are better arguments to make. So the chances are, if you're someone who's looking at an oral argument or reading a petitioner's brief and you have a disagreement with the strategy, unless your point of view on the strategy is fringe, fringe, fringe, fringe, fringe,

the odds are, if it's a mainstream argument in any way, it's being made. It's been made. And so I think that a lot of this, where you're putting such enormous import on the strategic decision to try to win the case with your best argument. It just ignores the way and the menu of arguments that the court actually has to choose from. And in this case, as you said, there were lots of amici who were raising this as well. you said, there were lots of amici who were raising this as well. I actually think there wouldn't have even been a concurrence on this question, but for that Sotomayor police power exchange, maybe there will be a Thomas note about the limitations of the Commerce Clause on the federal power as opposed to the state's ability under Jacobson or something like that. I think that's going to be as close as you get to side-eyeing commerce clause power in this case.

Yeah. No, I agree with you. I agree with you. But I think it's just important to bring that up, especially for our younger lawyer listeners or law student listeners, is you have to make some really tough strategic questions, tough strategic choices. And one of the first things and one of the best things I was ever taught was, and this sounds so simple and interesting. I mean, it's simple and obvious, but it's a simple reality that if you're not going to win with your best argument, that you're probably also not going to win with your second best argument. And in addition to you just win the case,

those are just like sort of simple tactical thoughts, especially in these big cause- big cause oriented litigation that people often forget because they have a policy or a legal, a jurisprudential goal in mind. And the jurisprudential goal often is not entirely served if your client just wins, but your client's happy, your client's happy, and that's your main obligation. All right. I have one thing I want to end with. Last one to you. So this isn't reader mail. It's just funny.

So listeners, before we got on the air, if you can call starting podcasting getting on the air, we were sort of going through a lamentation and that was people about some of the crazy things people can do. Well, I've got one. This is coming from two LAPD officers were fired for allegedly ignoring a call regarding a robbery and progress because they were playing Pokemon Go and had spotted a Snorlax. Okay. So I just want to read a little bit of the court decision in the case. Is this during peak Pokemon, which was like roughly August of 2019, 2018? That's a really good. No, this was 2017. So, yeah, I think that is peak.

I think that was peak Pokemon. Yeah. OK. So people were going crazy at that point. Yeah. So Pokemon Go. And I'll just for those who who don't know, it's an augmented reality mobile phone game that uses a GPS to sort of capture virtual creatures, which appear on your phone as if they're in your real world location. People died doing this. They would like walk off cliffs and stuff at its peak. Crazy. So here's some of the court of opinion from the facts, from the statement of facts. So five minutes after they said these two officers said, quote, screw it, regarding

checking with communications about a robbery call, Officer Mitchell alerted that, quote, Snorlax just popped up at 46th and Leimert. After noting that Leimert doesn't go all the way to 46, Lozano responded, oh, you know what I can do? I'll go down 11th and swing up on Crenshaw. I know that way I can get to it. Mitchell suggested a different route, then told Lozano, we got four minutes. For approximately the next 20 minutes, the recording captured petitioners discussing Pokemon as they drove to different locations where the virtual creatures apparently appeared on their mobile phones. On their way to the Snorlax location, Officer Mitchell alerted

Officer Lozano that a Togetic just popped up, noting it was on Crenshaw just south. or a Tagedic, just popped up, noting it was on Crenshaw, just south. After Mitchell apparently caught the Snorlax, exclaiming, got him, petitioners agreed to go get the Tagedic and drove off. When their car stopped again, the recording recorded Mitchell as saying, don't run away, don't want to run away,

while Lozano described how he buried it and ultra-balled the Tedetic before announcing got him. Wow, Sarah. I mean, I'm glad they seem to have a lot of fun and camaraderie and I'm the last person to condemn gaming. But robbery calls take precedence. Robbery calls take precedence. Robbery calls take precedence. But just reading all of that discussion, can you imagine as you're trying to defend your job in that recording coming up and how it would sound to a judge who basically knows nothing about Pokemon Go and has probably had some clerk

try to explain it to him. And then the exuberance around getting a Snorlax or a Tegetic. Not great, Bob. Not great. Not great. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has

this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, Sarah, that ends... We went from emergency pod to hybrid Frankenstein's monster part of the pod, and now we're back to emergency close.

Yes, we are living in the present again. We're living back in the present again. But you, listener, have gone through an hour and a half roughly. And I just want to note again, please look next to you. And if you think that's a bottle of lemonade, smell it. Double check. Take a whiff. Make sure before you douse a fire with it.

And I don't know. I don't think I said this, but congratulations to Scott. That's implied from our conversation, but congratulations to him. It is a very, very, very big deal to win a case at the Supreme Court of the United States. And I know he's done it before, but it's still- I think this one might be, done it before. But it's, it's still might be, I haven't actually asked him, but I feel like this one felt more important to him. And you do still congratulate like Steph after his third title or LeBron after his fourth. You still do it. It's still a big deal. So congratulations to Scott and, and listeners, thanks so much for hanging there there with us. I know we got deep in the weeds there on some administrative law stuff. So if you've got more questions about it, shoot us questions. As you know, we read our emails. We read our emails and enjoy reading our emails.

reading our emails. So please do email us, david at thedispatch.com, sarah at thedispatch.com. And please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts. Please check out thedispatch.com and we will talk to you on Monday. DQ presents How to Officially Start Your Summer Step 1. Head to the perfect spot to kick off the season. DQ! Step 2. Try the new Summer Blizzard menu. I mean, summer is right there in the name. And Step 3. Dig into flavors like new peanut butter cookie dough party,

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