Strict Scrutiny - No Laws, Just Vibes

Episode Date: January 8, 2022

Kate, Melissa, and Leah recap oral arguments in two emergency applications related to Biden administration policies designed to reduce the transmission of COVID-19. Follow us on Instagram, Twitter, Threads, and Bluesky

All right. In three, two, one. Hello, and welcome to another – sorry, that was too upbeat. It was very upbeat. Hello, welcome to Askabad. I am your host, a dementor. How many – but they don't speak. Death eaters, I think. The dementors go like that. Death eaters, I think. The debentures go like that. Like, suck your soul out. Okay. Hello and welcome to another emergency episode of Strict Scrutiny, your podcast about the emergency that is the Supreme Court. We're your hosts. I'm Kate Shaw.

I'm Leah Littman. And I'm Melissa Murray. And it feels like we have been doing more and more of these emergency podcasts this season between SB8, Dobbs, and everything else. And we have another one for you today because just before Christmas, happy holidays, everyone, the court announced that it would hear oral arguments on two emergency applications related to two Biden administration policies designed to reduce the transmission of the coronavirus. So guess what, you virus-hating individuals? Some coal in your stocking from the Supreme Court. We're going to take this up, put it on the regular calendar. So we are going to cover those two oral arguments

today, and we'll provide some quick background about the policies and how they made their way to the court, and then offer some analysis about what happened at oral argument on Friday. Before we get to the substance, though, some scene setting. After going remote for over a year in the spring of 2020, the court resumed hearing in-person arguments this fall. They've done so with no vaccine requirement, but with a requirement that advocates test the day before they appear before the court. rule went into effect not one but two lawyers scheduled to argue in these cases tested positive and so argued remotely both lawyers arguing against the biden testing and vaccination policies it's art and life all wrapped up into one this is so meta. Alanis Morissette is somewhere just sobbing into her tea that, you know. A traffic jam when you're already

late. A positive test on your way to the Supreme Court. Exactly. That's it. Kate, you're not canceled today. There's no smoking sign your cigarette break i remember it i remember it well okay so the advocates the two who tested positive had to argue remotely justice

sotomayor also opted to participate remotely um you know it's almost like the court is aware and through its rules demonstrates its awareness that physically going to the workplace can be dangerous because of covet 19 in fact it is an occupational safety and health issue. And so many layers. But so right. So, of course, because of the policies that the Supreme Court has implemented, the Ohio Solicitor General arguing that the federal government cannot protect other workers from the dangers of COVID-19 was able to argue presumably from the comfort and safety of his own home or office. The Louisiana Solicitor General arguing the federal government

can't protect patients in federally funded medical programs, vulnerable patients from the dangers of COVID-19 was also presumably able to argue from a home or office or other safe place. It reminded me of a passage from Justice Kagan's dissent from one of the court's earlier COVID cases, South Bay United Pentecostal Church versus Newsom, where she wrote, But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public. They still are, by the way. And our life tenure forever insulates us from responsibility for our errors. That would seem a good reason to avoid disrupting a state's pandemic response. But the court forges ahead regardless, insisting that science-based policy yield to judicial edict. I mean, she's already written the dissent in this case or these cases as well. The court, again, having these advocates argue remotely and having them test all while doubting the necessity of the federal government adopting a similar policy for large workplaces

had real Marie Antoinette vibes for me. Like, let those plebs eat cake, right? Like, I'm all good, but quite calling. Let me play Death Eater's advocate here. This case, you'll see where I'm going in a minute. This case came before the court because the vaccine and test mandates and the medical facilities mandate came out as the Delta variant was really gaining steam. And that was really the principal issue. And so what was wild to me was how this oral argument seemed to be conducted in the shadow of Omicron, which is like an entirely different public health landscape than the one we encountered when these mandates were promulgated. So back when the mandates were promulgated, the fact of a vaccination was essentially a foolproof

inoculation against the virus. And it was really the unvaccinated workers that you had to be concerned with. Now, I think everything is sort of topsy-turvy. A vaccination isn't a fail-safe against getting COVID, although it may mitigate the severity of your symptoms and your experience with it. And the unvaccinated are really more at risk, not only for catching it and transmitting it, but also suffering while they have it. So what was wild was, you know, they were debating a kind of Delta era policy and the underlying rationales for it in an Omicron world. And no one wanted to advert to the fact

of Omicron in any kind of explicit way, except Justice Sotomayor, who brought some big Harry Potter energy to this. Because not only was she attending from some other remote location, she basically was sort of saying, like, you death eaters will not get me. Like, I'm the only one who ever wears a mask here. And I'm just not coming today in person because you are not going to get me with the recklessness of all of this. And while typically the other justices are not masked, today of the eight justices in the courtroom, seven of them apparently did wear masks. I'm sure our listeners are wondering, who was the unmasked person? Who wants his Dewey face to be shown? It was not. Not the Dewey. It was not Dewey Sam.

I'm sure our listeners had a similar guess. It was Neil Gorsuch, who sits right next to Justice Sotomayor. So if you're wondering why she couldn't attend argument, maybe it's because Neil, that guy, Gorsuch. It's like I'm sitting next to Pius Thicke next to me. Do you notice she once, she referred to him as Neil once during the argument today. Yes, she did refer to him as Neil. And then sort of corrected herself.

So I got some color from my ABC colleague, Devin Dwyer, who was in the courtroom. What he reported was that they all walked in and took the bench masked, except for Gorsuch. But then once they sat, Thomas and Alito kind of ripped theirs off and stayed unmasked for the duration of the argument. And then others mostly kept theirs on, although I gather the chief removed his when he was asking questions and then put it back on. And I think the others mostly kept theirs on. I don't have no confirmation of this, but my strong suspicion is that Breyers was on really badly and that his nose was poking out the whole time. But I can't confirm that. Some needed context for what is about to unfold.

I'm just like, if everyone's wearing a mask, like, why are you not wearing a mask? I mean, I just don't get it. It's just a big statement. Yeah. Like, I'm not doing this. It is a big, it's like, that's the point. He's making a statement. So let's first get into the policies because there were two sets of cases challenging two different policies. The first policy and the one we will spend more time on is the more far-reaching one, and it is the Occupational Safety and Health Administration's vaccine or testing regime. So OSHA announced what is called an emergency temporary standard that applies to businesses with 100 or more employees. Those businesses have a choice between requiring all workers to get vaccinated, subject to medical and religious exemptions, or requiring unvaccinated

workers to wear a mask on the job and test for COVID-19 weekly if they work indoors and in close proximity to others. This policy has a somewhat complicated procedural history. So the U.S. Court of Appeals for the Fifth Circuit enjoined the rule after the rule was challenged by some business groups. But then the cases were sent to the U.S. Court of Appeals for the Sixth Circuit as part of the multi-circuit lottery. That court heard the cases en banc, that is, with all of the active judges participating rather than in a panel of three judges. And the Sixth Circuit declined to enjoin the policy.

So now the challengers to the policy are at the Supreme Court asking for a stay of the policy itself. That is basically for an emergency injunction against the policy. Okay, so the second policy at issue is the Center for Medicare and Medicaid Services rule that all employees at healthcare facilities that are funded by the federal Medicare or Medicaid dollars must be vaccinated. And here too, there are medical and religious exemptions from the vaccination requirement. But this, unlike the OSHA policy, is not a test or vax requirement, but an actual vax requirement, again, subject to exemptions. So this rule was enjoined by two different district courts, one in Missouri, one in Louisiana, both in opinions written by Trump nominees. And the Biden administration sought Supreme Court review is basically asking the Supreme Court for a stay of those rulings, putting those rulings on hold in order to allow the administration to actually

begin to enforce its vaccination requirement. These cases are at the court in a somewhat unusual posture. The court heard oral argument on a stay application, and the last time it did so was all the way back in 1970 in Citizens to Preserve Overton Park. The individual justices have heard oral arguments on an application in chambers, maybe at least as recently as 1980, but generally it's pretty rare for them to do so. So our question is, is the court responding to criticism of its shadow docket and the tendency to issue rulings without argument? And that explains why this case made it to the calendar.

All evidence suggests, including in this argument in particular, that Justice Alito is extremely sensitive to possible criticism of himself and the court. We'll play a clip later. So my guess is, yes, they are responding to criticism. And they're like, okay, fine, libs. We'll just issue these rulings after quick arguments and quick opinions. Are we all going to second guess our criticism? Well, they're going to do the same thing after making us listen to four terrible hours of argument. Maybe it's better if they just dispose of the stuff in the papers.

So we're going to provide some summary of the arguments against the policies before we actually dive into the oral arguments themselves. And the arguments being lodged against the two policies are quite similar. So the primary argument against both rules is that the agencies that adopted them lacked the authority under the relevant statutes to do so. This was the ground on which the Supreme Court invalidated the Center for Disease Control's moratorium on evictions. And even within this category of arguments, namely that the statutes don't authorize the agencies to make these rules, there are kind of two different sets of arguments here. First is that the general statutes governing the agencies don't supply the agencies with authority to issue these rules. So

for the Center for Medicare and Medicaid Services, the secretary has authority to make and publish rules and regulations not inconsistent with the act, as may be necessary to the efficient administration of the functions with which the secretary is charged under Medicare and Medicaid. One specific example is a secretary can condition health care facilities participation in programs on compliance with requirements that the secretary finds necessary in the interest of the advocates referred to during oral arguments as the OSH Act, which immediately raised big overall vibes for me, like Oshkosh, but gosh, the first thing I thought of. In any event, the OSH Act authorizes OSHA, the Occupational Safety and Health Administration, to issue health and safety standards to serve the objectives of the act. OSHA's authority expressly extends to setting standards addressing, quote,

toxic materials or other harmful physical agents so as to adequately assure to the extent feasible on the basis of the best available evidence that no employee will suffer material impairment of health or functional capacity resulting from exposure to the hazard. Okay, so those are the arguments about the substantive statutes that these agencies are implementing. There's a second set of arguments that basically under the provisions that authorize these agencies to take emergency actions under some circumstances, these policies don't qualify. So for the CMS rule, basically agencies ordinarily have to make rules through notice and comment rulemaking. So they provide notice of a proposed rule, they solicit comments from the public, they issue a final rule that responds to the comments that they received. So that's the ordinary agency rulemaking process. But agencies can bypass that process where they have good cause to do so. So the relevant statute here, the Administrative Procedure Act, defines good cause to basically mean complying with the ordinary notice and comment requirements would be impracticable, unnecessary, or contrary to the

public interest. And that's the basis on which CMS bypassed its ordinary notice and comment process and issued this rule, again, using the so-called good cause exception. OSHA's emergency action was on a slightly different basis. to issue emergency temporary standards, or what are called ETSs, where doing so is necessary to protect public employees from grave danger resulting from exposure to substances or agents determined to be toxic or physically harmful and from new hazards. So it's an OSHA-specific emergency authorization that is the basis on which OSHA acted here. The policies are also being challenged on the ground that they generally violate the Administrative Procedure Act, which is the big super statute that governs all administrative agencies' work. And the challengers basically argue the policies are unlawful because they're arbitrary and capricious.

They're not based in fact. They fail to consider certain things, reliance interests, alternative policies, right? They should have spent more time considering alternatives before essentially jumping to these kind of broad directives as the challengers characterize them. There are also some constitutional issues that are implicated in these cases, among them the non-delegation doctrine, the Commerce Clause, and the Tenth Amendment's reserving certain activities for the states rather than the federal government. But it's unclear how much traction these constitutional claims will get outside of being a backdrop for the arguments about what the statutes mean and what the scope of the statutes and what they authorize the agencies to do will be. But it's

really important to remember that these cases underscore how, as we've said before, this court can do a lot of damage simply by reviewing statutory claims involving agencies. More on this later. But again, the sort of imbrication of the constitutional law issues with some of these statutory questions really, I think, sort of chilled a number of us as we listened to the oral argument today. So consider some of the arguments that are being made to limit OSHA's authority. One is that OSHA must make a finding that a harmful material actually is in the covered workplace in order to regulate those workplaces and those materials. The other is that OSHA's authority extends only to physical substances as opposed to airborne substances. The third is that OSHA's authority extends only to

risks that are specifically unique to the workplace as opposed to something like COVID, which is not contained in workplaces alone. So you can imagine how once they resolve these questions in the statutory context, they will simply continue building on it and extending some of those arguments in other places. But again, more on this. Okay. So now let's get into the oral arguments themselves. We're going to proceed chronologically and first discuss the challenge to the Occupational Safety and Health Administration rule. And I guess we'll kind of go chronologically through that argument as well, first discussing

how it went for the challengers and then for the Biden administration. Overarching note, though, Justice Kagan came ready to fuck shit up today. Oh my god, she rode to Cody Rigsby in the morning, she listened to Britney, and she came loaded for bear. Exactly. What do we do when Cody Rigsby plays Britney Spears? We fuck shit up. And that was ready.

It was honestly really impressive. She was able to sustain the level of energy, pointedness, and disdain and rage for the entire three hours and 47 minutes that these arguments took. I mean, that's a lot of time. She was incredible. XOXO, Elena. XOXO. She also had this, I mean, she was so she was so full of like indignation and rage, but also like kind of laughed a few times as she was talking. And it made me feel so much better because we are sometimes criticized for like laughing in really dark moments.

Like we're making light of them. I think actually Kagan's response to the arguments today was sort of in the same spirit, which is sometimes things are so awful, unspeakably so. Obviously, she spoke beautifully, but just they're so awful that like you just kind of have to laugh. It's a coping device. So you don't curl into a ball literally at your podium and just weep about the state of our country. I mean, she was also probably like, I can't believe you're making this argument. That is actually laughable.

Did you go to Harvard Law School? Did I sign your diploma? Like, what the hell? Right. And she's this, you know, administrative law scholar before she joins the bench. And she's just like, these fools, both at the podium and on the bench with me, are making a hash of administrative law doctrine and sort of doing this like mad libs of like trying to throw various constitutional and administrative law doctrines like at these policies they just don't like to sort of try to see what sticks.

And she's just like, I can't believe this is my life. Who needs law when you can just be governed by conservative vibes only? I mean, like that was just, you know, the real energy throughout. Let the textualism wash over you, Alina. Just let it wash over you. But back to Justice Kagan. Okay, so let's play one clip, which is really her opening line of questioning about why OSHA had this authority. And here is what she explained to the lawyer arguing for the business organization against the rule.

Why isn't this necessary to abate a grave risk? This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day. I don't mean to be dramatic here. I'm just sort of stating facts. And this is the policy that is most geared to stopping all this. There's nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves. So, you know, whatever necessary means, whatever grave means, why isn't this necessary and grave? Because, Justice Kagan, the standard for what would be necessary for this extraordinary use of emergency power is not what is the best way of a.

It's an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before. So many different things in this clip, and we're probably going to come back to some of them. But one thing I wanted to highlight is just her point that the lawyer for the businesses is like, well, this is an extraordinary power. And she's like, yeah, these are extraordinary circumstances, dipshit. Like we're going on two years where we haven't been able to work and go to school and live our lives. And so it's not that surprising that the agency did something that it hasn't done before. Right. And it did a thing. And to go back to your textuals and wash over you, like the statutory language on which it relied is necessary to abate a grave risk. So she is making this principled point, but the principled point is grounded in the words of the statute that were the basis on which the agency acted.

So it's not as though she is saying, forget the text. It doesn't matter because the emergency is so serious. She's like, there's literally a basis. It couldn't be clearer. We're all textualists now, damn it. And I'm still right. We're all textualists now. Yeah. He's still right. The other thing I think was really interesting here is that she was actually, I think, rebutting Justice Thomas's opening question, which was a leading question.

He really focused in that question on how to define the term necessary both for purposes of regulation and for purposes of the Necessary and Proper Clause. So this goes back to what we were just talking about, like the imbrication of these statutory and constitutional arguments. And I think it's really important to flag this because, one, the Necessary and Proper Clause is a significant source of congressional authority to legislate, and especially in the post-Renquist court era, where the court really narrowed the Commerce Clause power, which was, I think, the principal means by which Congress could act to regulate some of these things. And Justice Thomas has always, I think, been very, very skeptical of a more liberal use of the Necessary and Proper Clause. So in a 2010 case, United States v. Comstock, the court, in an opinion written by Justice Breyer, blessed a broad reading of the term necessary. I don't

even mean it's broad. It's sort of like in line with McCulloch versus Maryland. But Justice Thomas, in a very vehement dissent, argued for a much narrower definition of the term necessary, one that would basically limit the term to those things that are absolutely essential for the exercise of an enumerated power. The Necessary and Proper Clause was not on the table today, but again, in sort of a kind of intratextualism move, Justice Thomas was all for narrowing it in the statutory context. And then I think later we'll deploy it if it's successful in the constitutional context. So he's always laying breadcrumbs. He's like the Hansel and Gretel of this piece.

This is why I said his Taylor Swift song is Endgame. So good, Leah. You are prescient, prescient. Okay. We are not just going to play Cagan Clips, but there are a few others that we really have to play. But we could. And honestly, I wouldn't be opposed to it. They might be my ringtone slash our new intro music.

I don't know. I just want a T-shirt since I can't clip all of these that just says, read Elena Gagan on vaccines or like something like that. That's not great, but I'm workshopping it. Something along those lines, for sure. So this question that you asked around minute 29 really went to the heart of, I think, much of what was being argued both by the challengers to the OSHA policy and to the CMS policy, which is both lawyers, well, four, God, there were two lawyers challenging each policy. It was just like endless. Boom, lawyer. And lawyer, and lawyer, and again, and again, and again.

And they were just making a lot of policy arguments about workers who would exit the workforce if required to test weekly. Like, okay, this is a claim that's being made. You know, medical facilities losing staff. We're talking about the CMS policy. And Kagan, I think, just sort of went to the heart of what was wrong with those lines of argument. So let's play that clip here. The big question is who decides? Your very last sentence, you said the question is who decides. And I think that that's right. I think that that is the question. Respectfully, I think it has a different answer than the one that you give,

so I'll just sort of put a different version of it to you, which is, you know, I'm sure you're right that there are all kinds of public health and economic tradeoffs that have to be made in a policy like this. All kinds of judgments on the public health side, on the economic side, how those two things ought to be balanced against each other. So who decides? Should it be the agency full of expert policymakers and completely politically accountable through the president? This is not the kind of policy in which there's no political accountability.

People like this policy, they'll go to the polls and vote it that way. If people don't like it, they'll vote that way. This is a politically accountable policy. It also has the virtue of expertise. So on the one hand, the agency with their political leadership can decide. On the other hand, courts can decide. Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise. Why in the world would courts decide this question? This question and framing is so devastating to the challenges, to the rules, that some of the justices spent a not insignificant time trying to fight it and chip away at it.

Specifically, Justices Gorsuch and Kavanaugh were trying to say, well, look, if we rule against the rules here, we, Supreme Court, aren't disagreeing with the agency about the best policy. We courts just get to decide who decides the policy, namely agencies versus Congress. Note these things aren't actually distinct. And they're definitely not distinct here, in part because of the textualism wash over you illusions that we've noted previously, because the arguments in these cases are, let's assume the relevant statutes actually do authorize the agencies to adopt these rules. But we court are going to impose effectively a clear statement rule that requires Congress to specifically, clearly, and explicitly authorize particular policies that we courts think are major. So it's like a judicial carve out, judicially imposed clear statement on this

statute. So it is the courts, you know, making these policies, and it's just specious to try to frame it otherwise. But Gorsuch at one point said, like, no one disagrees that we have the power to decide who decides, but because the power is exactly as expansive as you're suggesting, I was like, no, no, the way you conceive of the court's power, like lots of people disagree with that. Don't assume that no one disagrees. But I thought that line of argument also went beyond this particular argument. And I mean, this is about the non-delegation doctrine. I mean, like that clear statement is essentially a more intelligible principle than what we currently have as the marker of when Congress can delegate properly to an administrative

agency. If you have to be even more clear than what we already allow for, then you might as well not have an agency at all and just let Congress do everything. This articulation of the major question doctrine, to me, just isn't that meaningfully distinct from a non-delegation doctrine at all. Because what the court is saying is who cares that Congress actually authorized the agency to make this kind of regulation? We are, again, as a court, taking a carve out and just taking a hacksaw to the statute and say, no, you actually can't do this under this statute, even though Congress authorized you to do so. Right, because the major question doctrine has historically just been invoked when an agency is seeking deference to its interpretation of a statute.

Here we're talking about a completely transformed major question doctrine, which is either just this kind of supercharged clear statement rule that any time a court decides a problem is a big deal, right, it involves like major intervention in the political or social or economic life of the nation. Congress has to be unbelievably clear about what it is delegating agencies the power to do. It was just such an unrecognizable version of this major question doctrine that was sort of in the ether at the argument this morning. I'm not even sure exactly as you just said, if there was any difference between it and a non-delegation doctrine. It wasn't clear to me if they were saying Congress may give agencies the power to act in these big important spheres if they do so in hyper, hyper clear and explicit terms, or whether they were saying, nah, they

probably can't give agencies this power at all, which is obviously just a version of the non-delegation doctrine. But I think it was like maybe both. I mean, it wasn't clear which they were saying, but either way, I guess maybe as a technical matter, they were saying Congress could give agencies this power if it acted clearly enough. But as a functional matter, in the case of an emergency that's going to arise and require quick responses from agencies, Congress will never be able to act with the speed and the clarity that the court would require in order to withstand review under this new test that it seemed to be sort of grappling towards. Like a bunch of times they were just like, well, OSHA, the statute, the 1970 statute,

didn't anticipate this, you know, that OSHA would need to mandate vaccine or testing in major workplaces in the year 2021. No one in Congress in 1970 had a time turner that they used to go forward 50 years and figure out that there was going to be a global public health crisis that would require vaccines and masking and testing. Imagine that, Kate.

And it's some kind of neutral principle that the Constitution contains that requires- The neutral principle of Hermione Granger's time turner. That's what it is. No law, no doctrine, conservative vibes only, right? That's what this argument is. What must it feel like to go to work every day and just be like, today, not only will I decimate the public health landscape, I will check two things off Leonard Leo's to-do list. Amazing, like winning, hashtag winning.

So back to the Elena Kagan greatest hits album. So as Melissa noted in summarizing the arguments against the OSHA policy, one of the arguments is that the agency lacks the authority to regulate COVID because COVID isn't unique to the workplace. That is, it's something you're at risk of acquiring at home, when you go out and about, etc. On the subway, at NYU's non-existent campus, all those places. I truly admire your ability to hold a grudge, Melissa. It's Virgo. I'm such a Virgo. I'm an aspiring Virgo. So in response to this argument that OSHA can't regulate COVID because COVID isn't unique to the workplace, Justice Kagan had this to say to the Ohio Solicitor General. This is the combination of lots of people all going in to one indoor space and having to deal with each other for eight hours, 10 hours, however many

hours a day. In those settings, the combination of the environment and the people that are in that environment create a risk, I would think, I mean, tell me if I'm wrong about this, I would think that workplace risk is about the greatest, least controllable risk with respect to COVID that any person has. You know, everything else a person can control. You can go to the baseball game or not go to the baseball game. You can decide who to go to the baseball game with. But you can't do any of that in workplaces. You have to be there. You have to be there for eight hours a day. You have to be there in the exact environment that the workplace is set up with. And you have to be there with a bunch of people you don't know and who might be completely irresponsible. Where else do people have a

greater risk than at the workplace? So on the other end of the spectrum, not likely to cut an album of greatest hits from this argument was Justice Stephen Breyer. I don't know if his nose was hanging out his mask, but I don't – it wouldn't excuse some of his questions if it was. Kudos to him. He's clearly enjoying himself. And that's what we all want for our life at work. You want to do something you love. Do we all want to be enjoying ourselves at the expense of sound governance, constitutional democracy, law?

But he's enjoying himself. I was going there, but like, I mean, to his credit. So he asked Scott Keller, you know, let's play that clip here. I want to ask a provisional question. Are you still really asking this court now today? I mean, I assume your arguments are, you have good arguments in your brief. And so does the government. So I'll assume for the sake of argument

that they're both fairly good arguments, okay? Thank you. I think that goes to like sort of the weird kind of clubbiness of the court that makes, I think, people feel like they're just outside of this sphere. Like it just, it's gross when you listen to it. And it also, there were a number of moments

in the argument when Breyer just sort of made odd, light kind of joking remarks and got sort of a laugh out of the advocate. And a couple of times out of other people in the room, I couldn't tell like who, but they, I'm not sure they were all like laughing with him at each of these moments, quite honestly, though he definitely thought they were. He seemed to try to pay a compliment to his law clerks at one point. But this says what I mean. My law clerks have been busy beavers on this case, I promise you. Yeah, I appreciated that.

I appreciated him shouting out his clerks. I think it's really important to give credit to the people who support you. It's not a credit giving I would have drafted for myself. It was like these little cuties are just building a dam and just grabbing the little wood chips and just, yeah. Eating wood all day, making a bait, making a dam. But you know that actually beavers, they're so cute, but then they will just bite you. Beavers are very aggressive. To be generous, I think he was genuinely saying, my clerks have been putting in a lot of hours on this. And they probably have been working around the clock given the volume of things they've been dealing with.

So props to him for recognizing the hard work. Even if inawfully done. Okay, all right. We'll give him props. In his further defense, he did eventually make it to an important point about the stay standard. That is the standard to actually obtain a stay

or an injunction against this OSHA rule. So let's play that clip, by which I mean a lengthy excerpt here. Are you still asking us to issue a stay and stop this from taking effect? Like issue a stay today or tomorrow or Sunday or Monday or Tuesday? I mean, the reason I ask that is there are several elements. We have some discretion there. And you know it was brought up. I mean, there are three-quarters of a million new cases yesterday. New cases.

Nearly three-quarters. 700 and some odd thousand, okay? That's ten times as many as when OSHA put this ruling. The hospitals are today, yesterday, full, almost to the point of the maximum they've ever been in this disease. Okay? And you heard references, studies. I mean, they vary, but some of them say that the hospitalization is 90% or maybe 60% or maybe 80%, but a big percent filled up yesterday or the day before with people who were not vaccinated.

Okay? So that's what we're talking about now. And think of the stay requirements. It's both the balance of harms. It's also public interest. Can you ask us, is that what you're doing now to say it's in the public interest in this situation to stop this vaccination rule with nearly a million people? Let me not exaggerate. Nearly three quarters of a million people.

New cases every day. I mean, to me, I would find that unbelievable. This was a great point. But wow, what a windup. But he did make it a couple of times, and it seemed important to remind everyone of the posture of the case. And also, it seemed to be, to the extent there is like a strategic logic to some of his questions, to be pitched at like the Barrett and Kavanaugh wing of the court that has seemed previously open to the idea that the court ought to be somewhat more modest than some of the members of the court are inclined to be when issuing emergency relief like this. So that if it got through to them,

who knows, you know, was a constructive use of his questioning time. So we got to give him that. We didn't get to hear the first part of Justice Sotomayor when she began to ask questions. There was some sort of audio snafu that likely only occurs when one of your colleagues is somewhere else in the building being remote because she's worried that she might get COVID. In any event, we couldn't hear a lot of what she was asking, but we could hear what the lawyers were saying in response. And it seemed like one of the things she was raising was, of course, the federal government had to act because there are state-level death eaters that are doing things like eliminating and banning mask mandates and all of that. So

of course, there had to be some kind of federal intervention because there is no sort of uniform response at the state level that would go to promote public welfare. I gotta say, hemispherics of her. So the first, I don't know, what was it, 30 seconds, 60 seconds? It seemed like interminable, but it was, yeah, it probably wasn't that long. She was obviously talking. They could hear her. We couldn't hear her on, like her audio wasn't being piped in to the live stream. And then when they fixed it and you could sort of hear her, I was like, there was this moment of like, ah, like, I don't know if you guys had that same reaction, but it was like, I actually, it was a nice sort of realization of how important she and her voice really are in all the oral arguments. It was so frustrating and not to know what she was saying.

And then I was just like, oh, here you are. And then they mostly got the technical snafus figured. There were a couple of weird other moments, like Kagan was not always amplified at the beginning of her questions. And I think they need to work on that for the rest of the spring sitting. But Sotomayor after that first snafu was pretty intelligible throughout. So maybe now we can go on to the Ohio Solicitor General's portion of the argument. As we mentioned, there were two challengers, two lawyers arguing against both of the policies, and this was the second one. The first advocate was

representing NFIB, which is the National Federation of Independent Businesses, which is, I guess, an interest group for small businesses. They're the same interest group that challenged the Affordable Care Act. So just to link some of these dots together. Anyway. Speaking of no law, conservative vibes only, let me do a mad lib of, you know, made up arguments against a policy I don't like. We'll return to that argument when we get to the CMS argument and some of Justice Gorsuch's questions. Definitely echoes that. Yeah. But back to the Ohio SG.

And Leah, where was he arguing from? Well, it's funny you ask. He was actually not physically present in the workplace. I know, because having COVID, it turns out, is a danger in the workplace. I don't know. So I hear. Shut the front door. Unfortunately, it turns out that for all other purposes, and specifically the Biden administration's ability to attempt to contain the pandemic, COVID is not a danger in the workplace. And accordingly, the federal government can't do anything about it. Or so his argument went. So the Ohio Solicitor General insisted on describing the OSHA policy as a vaccine mandate, which it is not. And at least some of the justices appeared to understand that.

As we summarized at the beginning, employers have an option of either requiring masking and testing or imposing a vaccination rule. OSHA typically identifies a workplace danger and then regulates it. But here, the president decided to regulate a danger and then told OSHA to find a work-related basis for doing so. This resulted in the vaccine mandate, a blunderbuss rule nationwide in scope that requires the same thing of all covered employers, regardless of the other steps they've taken to protect employees,

regardless of the nature of their workplaces, regardless of their employees' risk factors, and regardless of local conditions, state and local officials are far better positioned to understand and accommodate. As you hear in that clip, not only did he start with this really strident opening about a vaccine mandate, which is a non-existent policy that the federal government has never issued, but also describes the federal government as having used like a blunderbuss approach. And Barrett picked up on this kind of line, seeming maybe to try to attempt to portray a court decision invalidating the policy as somehow like moderate or minimalist. Right. Like the suggestion being, well, if they

had only regulated some workplaces where the threat was especially potent, then we'd be fine with it, even though the logic of their argument suggests they wouldn't be. And in any case, that just doesn't make any sense, given that the policy did exempt workplaces where people work from home or work alone or work outside. So anyways, Justice Kagan also, I think, effectively responded to this suggestion that it was somehow totally weird for the federal government to regulate all workplaces. So let's play that clip here. Did you know of any workplaces that have not fundamentally transformed themselves in the last two years? I mean, maybe like landscapers, they work outside. But I mean, this idea that there are only a few select workplaces that are affected by COVID, I would have thought every workplace has been affected by COVID. Every workplace sent their workers home. Every workplace had to make adjustments to the way they do their business. out like why this is a blunderbuss approach when everybody knows from living their normal lives

that every workplace has been affected by this, save for, you know, a few here and there. Also, this weird moment when the Ohio Solicitor General suggested an analogy between regulating COVID and regulating terrorism. He was like, if we look at terrorism, there's some list of terrorism that we face when we wake up in the morning. We face it at home, in public and at work. That's so weird. And we all adapted after 9-11, including if you see something, say something. I was like, is he proposing that as a policy intervention with COVID? You see people sneezing on the subway. If you see COVID, say something. And then everyone's like, oh my god, but COVID's invisible. Or is it like if you see Neil Gorsuch

running around without a mask, then I'm supposed to like call OSHA and be like, there's a danger in the workplace and its name is Neil Gorsuch. I mean, what? Justice Sotomayor, like I'm a hotline. The guy who sits next to me. OSHA, come down here. Come on. You know, I was trying to live tweet the arguments and I just couldn't live tweet that because I was wondering, did I hear that correctly? What is he saying? But that's a reflexive move too. I mean, like sort of the invocation of 9-11 and terrorism is

all, I mean, that's reflexive too. Again, Justice Kagan responded to this doing cleanup on aisle one, first street all day long. She responded to the suggestion that there was something, you know, weird about suggesting you could regulate COVID in the workplace. So let's play that clip here. Now, the fact that you face that work, that risk when you go to work doesn't make it a workplace risk. It means it's an ever-present risk. Why not? I mean, this is the combination of lots of people all going in to one indoor space and having to deal with each other for eight hours, ten hours, however many hours a day in those settings, the combination of the environment and the people that are in that environment create a risk, I would think, I mean, tell me if I'm wrong about this, I would think that workplace risk is about the greatest, least controllable risk

with respect to COVID that any person has. You know, everything else a person can control. You can go to the baseball game or not go to the baseball game. You can decide who to go to the baseball game with. But you can't do any of that in workplaces. You have to be there. You have to be there for eight hours a day. You have to be there in the exact environment that the workplace is set up with. And you have to be there with a bunch of people you don't know and who might be completely irresponsible. Where else do people have a greater risk than at the workplace? I just really appreciated her, I think, very astute observation

that people don't have a choice about whether to go to work. People need to work. They need to be able to support themselves. And you can opt out of a bunch of things, but, you know... Not work. Not work. They need to be able to support themselves. And you can opt out of a bunch of things, but, you know, not work, not work. And so of course, it makes sense for OSHA to regulate the one place where you have to go and be around people. It was a nice dialogue with a kind of, it seemed to me, very like faux populism of just to skip ahead a little bit of the opening to the argument challenging the CMS rule, which was like, you know, this is going to devastate like workers at rural hospitals and

rural populations in need of care. She's just essentially making the argument that choice is fine and great and people can make choices to live risky lives or to, you know, be very safe and secure and avoid COVID to the extent possible, like there's a limitation, but that people are extremely constrained in their choices in terms of the workplaces that they attend. And so this kind of intervention is the way to make sure that people can make a living and still protect themselves from COVID. There was also a line of argument from the Ohio Solicitor General about generally the idea that the Biden administration had done something improper in announcing this policy prior to OSHA's issuance.

So I don't know. What did you all make of that argument? You know, it's interesting. I expected it to actually be more prevalent in the argument than it was. I think it was in the brief and the Ohio SG opened with it, like Biden announced it and then told OSHA to regulate as opposed to the way a policy process ordinarily works, which is in his depiction, like agencies with no guidance from the White House or the president just like decide like on a blank slate, like what problems to tackle, like that's actually not how it ever works. And I appreciated that nobody, I actually did think there would be a lot of like, you know, bad faith Sam Alito invocation of the Biden speech here, like Biden's, the press conference that Biden gave a couple of weeks ago that Leah, you flagged on Twitter that suggested there wasn't a federal

solution to COVID. But I guess credit where credit is due, like Alito decided to refrain. I'll pass. I'm going to keep my powder dry for later. Yeah. Instead he had a meltdown later. Oh, I can't wait to talk about that. So one more thing that the Solicitor General did I thought was really interesting, but he seemed to tip his hand about his current status as someone who had COVID. So here's a little clip. The other point of the public interest is one awkwardness of this situation is that the ETS is focused on what was really a different pandemic. It's all about the Delta variant.

Now we are on to Omicron. And as my presence here as a triple vaccinated individual by phone suggests, and as Justice Sotomayor suggested, and as the Amicus Priest and the American Commitment Foundation shows, vaccines do not appear to be very effective in stopping the spread of transmission. I thought he was suggesting that he, more than anyone else, knew firsthand the importance of vaccines because he had gotten COVID after getting vaccinated. Was that how you read it as well? I think so. As if, you know, all the facts of the administrative record just paled in comparison to his own positive COVID testing. Like, I went to CVS, I got vaccinated, and then I took this test and I had COVID. Notice and comment. He also had this really terrific line where he mentioned in a colloquy with Justice Gorsuch. But another way to look at it is something

of a constitutional doubt canon where we recognize that although our non-delegation doctrine is not especially robust today, there are limits on the amount of authority that Congress can give away. I have to say, I'm going to give it up to Justice Gorsuch, who exhibited such restraint in this moment. I know. Because he was just like, we don't, for now. Right, exactly. For now.

He knows he just bided his time. Watch this space. So, you know, credit where credit is due. Incredible restraint. Yeah. One place where credit is not due was to Brett Kavanaugh, who in exchange that was seared into my mind immediately because I was so insulted on Justice Kagan's behalf when it was Justice Kavanaugh's time to ask some questions, he indicated which of his colleagues' questions he wanted to follow up on, and he characterized them in the following fashion. I want to follow up on Justice Gorsuch's questions, which I think

are important, and also Justice Kagan's questions about the policy arguments that are present here, especially in an emergency situation. You know, I'm sure it was unintentional and it probably came out the wrong way. On the other hand, I think Justice Kagan exhibited considerable self-restraint by not immediately getting out of her seat and just thwacking him upside the head. Let's play out a scenario where it was completely intentional. And in that sense, like maybe he is like kind of a grudgy, like a petty, like maybe super petty, which I'm kind of here for. And he's mad at all those little slights that she lodges against him and her written opinions. Like we've talked about those. I mean, she's pretty much like, maybe this was the revenge of Brett Kavanaugh. She's murdered him like 100

times over. I mean, 911, I'd like to report a homicide for sure. like maybe this was she's murdered Brett Kavanaugh like 100 times 9-1-1 I'd like to report a homicide for sure but maybe this was him like I can maybe he has big Virgo energy yes kind of cool although this is such meek sauce and such a weak rapport like I mean she doesn't care she's not good I mean like she's just like anyway like like swatting flies I mean I just if he's holding a grudge about that, I love that this is how it was ventilated. Now we get to the United States portion of the oral argument. And here's where things really took a turn toward. I don't even know what to describe it, but strange. So well-known liberal Chief Justice John Roberts intervened. Well, no, I do think it was somewhat hard to read the court as a whole during the first two lawyers' arguments. And then once the federal government got up, it was pretty clear things

were going really badly. And one of the ways it became clear was that, yeah, the chief asked several questions suggesting a theory in his mind I had never encountered in the world that is something I think along the following lines, which is a number of agencies, right, the two before the court here and others, right, that have or are considering other kinds of kind of COVID mitigation policies are acting. And the fact that a number of agencies may be acting pursuant to congressional delegations of authority to act somehow undermines the lawfulness of all of them, or at least the OSHA policy in front of the court here. General, you said just a short while ago that this presented, COVID presented a grave danger to people in the workplace. In a few minutes, we'll hear an argument in the CMS case,

and it will be that presents a grave danger into Medicare and Medicaid facilities. Not here, but in the lower courts, the federal contractor mandate, the argument is going to be it's a grave danger to federal contractors. Could you give me examples of some federal agencies where you would be willing to say COVID is not a grave danger in that context? Well, Mr. Chief Justice, I haven't, of course, surveyed the landscape of all of the different authorities that federal agencies can invoke. Well, but you represent them on a regular basis, you hear. So you have a pretty general idea of some other examples of federal agencies. And my point, obviously, is that I don't think as more and more mandates and more and more agencies come into place, it's a little hard to accept the idea that this is particularized to this thing, that it's a OSHA regulation, that it's a CMS regulation, that it's a federal contractor regulation. It seems to me that it's the government is trying to work across the waterfront and it's just going agency by agency. I mean, this has been referred to the approach as a workaround. And I'm wondering what it is you're

trying to work around. Because COVID is such an enormous threat and that a number of agencies are acting in various ways in their respective spheres to respond to the threat that throws into question the lawfulness of all of it. Like, is that, am I missing something or is that kind of what he was suggesting? That was also how I read this exchange and it has no basis in law whatsoever.

The suggestion that just because multiple agencies might have authority over the same pressing national issue that none of them do, it is quite common for agencies to have overlapping authority over some topics. And the Chief Justice's allusion to this idea that it was a workaround made me wonder if that was a reference to something that had become a bit of a talking point on conservative social media, which was the fact that the White House Chief of Staff, Ronald Klain, had retweeted something that said OSHA doing this policy as an emergency workplace safety rule is the ultimate workaround for the federal government to require vaccinations. And I guess the implication is, well, what the

federal government is really trying to do is impose a national vaccine requirement, but it doesn't think it can do that. And so it's trying to do so here. But it was just a super weird suggestion and, again, has no basis in law and really odd for the chief justice, avid proponent of the unitary executive theory, to suggest there's something weird about the president trying to establish like a uniform policy for the whole federal government. It's just super weird. Well, I mean, Leah, that unitary executive appetite kind of ebbs and flows depending on who is the unitary executive. It's funny how that works. Weird. Another theme that I think that the chief and Alito and Thomas all at different points seem to be suggesting was that, you know, because there's never been a federal policy mandating vaccines or testing like this one, that that somehow threw into question the lawfulness of the policy, that it's like very

novelty kind of doomed it. And I cannot miss the opportunity to highlight a fantastic law review article that Leah wrote a few years ago, published in the Duke Law Journal, called Debunking Anti-Novelty, which makes incredibly clear that the fact that an approach taken by the federal government is new or novel is not an indication that it is unconstitutional. So the articles, I recall, focuses on statutory novelty. And this case is obviously about supposedly novel regulatory action. But if anything, I think the point has to have even more force when we're talking about agencies, right? The whole point of Congress making delegations, sometimes broad ones, to agencies is so they can respond, including where necessary, in novel ways to novel problems,

like the fucking thing that is actually called the novel coronavirus. That is the name of the virus. No, we want an anti-novel coronavirus. Old solutions to new problems is all we can use, federal government. Anyway, justices, please read this article. There were a couple of really interesting exchanges among the justices with Solicitor General Prelogar. And they all seemed to be sort of looming around the question of like, had the federal government gotten it right in deciding that this was the best way to address COVID? So here is Justice Thomas speaking on this question. Is a vaccine the only way to treat COVID. And we had a text exchange during his questioning,

which was like, is he looking for someone to bring up ivermectin? Like, is that what he's going for here? How do we know the vaccine is the best way to deal with this? And then there was Justice Alito, who's bringing big freedom energy to this. So here he goes.

Has any other, has OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk on the employee so that if you have to wear a hard hat on the job, wearing a hard hat has some adverse health consequences? Can you think of anything else that's like this? So he seemed to be channeling this idea of like, how can the federal government possibly second guess employees assessment of the risks in the workplace by deigning to establish a policy regarding safety in the workplace? And it's like, that's the entire premise of OSHA and workplace safety regulations, that there are some risks that we don't allow individuals to make the calculus about for themselves. And yet, this seemed to escape him. It had real give me liberty

and give me death vibes, as Melissa had noted, as we were joking about before we started recording. So here's a meltdown we've all been waiting for. Justice Alito has this windup, and he has this question that he really wants to ask, but he's really nervous about people criticizing him for asking this question question because he knows he's going to be chastised for asking it on strict scrutiny and elsewhere. So he's like, I want to make very clear that what you're about to hear is not actually what I'm saying. So why don't we just play the clip and the resulting meltdown now? And here's another respect in which it may be different. And I don't want to be misunderstood in making this point because I'm not saying the vaccines

are unsafe. The FDA has approved them. It's found that they're safe. It said that the benefits greatly outweigh the risks. I'm not contesting that in any way. I don't want to be misunderstood. I'm sure I will be misunderstood. I just want to emphasize I'm not making that point.

But is it not the case that this these vaccines and every other vaccine of emphasize I'm not making that point. But is it not the case that these vaccines and every other vaccine of which I'm aware and many other medications have benefits and they also have risks and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences? Is that not true of these vaccines? And if that is, is that true? That can be true, but of course there is far, far greater risk from being vaccinated by orders of magnitude. Right. There is some risk. Do you dispute that? There can be a very minimal risk with respect to some individuals. But again, I would emphasize that I think that there would be no basis

to think that these FDA-approved and authorized vaccines are not safe and effective. No, I'm not making that point. I tried to make it as clear as I could. I'm not making that point. I'm not making that point. I'm not making that point. There is a risk, right?

I mean, what did you think about this? He was having a mini tantrum. The third time he said, I'm not making that point. I was like, it was a tantrum. I was like, how many times is he going to say this? It was wild. Yeah. And it's like, his point was there are side effects to the vaccine.

It was, you know, as much as he did. He was making the point and then saying, I'm not making the point. It was like the ultimate gaslighting. I'm making the point that Jenny McCarthy has made for me many times over. This was such a perfect encapsulation of what Adam Serwer said on our earlier episode, which is Justice Alito feels entitled to make these statements and then tell people, you can't report what I said and you can't criticize me for making them. It was really something. I really want to hear Adam's take on that 30 seconds of Alito's life.

It was wild. There was also a really interesting exchange between Alito and Prelogar about the prospect of the court issuing an administrative stay in this situation. So let's hear that. These cases arrived at this court just a short time ago. They present lots of difficult, complicated issues. We have hundreds of pages of briefing. We're receiving very helpful arguments this morning. Does the federal government object to our taking a couple of days maybe to think about this, to digest the arguments before people start losing jobs. So now you want an administrative stay. Okay, now you're good with it.

In order to work through difficult and complicated issues, which you told me the existence of precluded you from granting a stay before in the SBA case. So funny how this works. And then he once again got super defensive about the prospect that he would be criticized for entering a stay. You think it would be appropriate or it would not be appropriate if we issued a short administrative stay? Or if we do that, are you going to say, well, they're causing people to die every day? Well, who was the you in that question, right? Are you going to say they're causing people to die every day? You, the press? You, the Solicitor General? You, the Biden administration?

You, the gorgeous ladies of strict scrutiny? We're definitely going to make the list this year. And finally, not to be outdone in the Fox News talking points was Justice Neil Gorsuch, who wanted to chime in about, well, isn't this, that is COVID, just like the flu anyways? What do we make of the fact that Congress at OSHA has not traditionally mandated other vaccines for other hazards that could pose a grave risk, some might say? The flu kills people every year. We have flu vaccines. The flu kills, I believe, hundreds, thousands of people every year. OSHA's never purported to regulate on that basis. Yes, Neil, because during flu season, you cancel Supreme Court arguments and require

lawyers to take a test before they argue. It's just like, come on, dude. Also, hundreds of thousands of cases is completely wrong. Like that's 35 or something in an average year, 35,000 flu cases. Get your facts straight. Facts, law, doctrine, no, no, no. Conservative vibes only. CMS, let's try to do that one briefly, the second argument. I was exhausted by the time we even got to the first lawyer in the second case when there were two of them. I had to take some electrolytes in the middle. It's a lot. The Missouri lawyer argued first. The Louisiana lawyer argued second. Like the Ohio SG, she argued remotely. Do we know if that was because she tested positive for COVID? Yeah. It was reported by Reuters that she also tested positive for COVID.

File that under you can't make this up. So the Missouri lawyer opened with this like sort of trying to paint a picture of rural hospitals plunged into crisis and rural patients without access to medical care. Like the first argument, you know, playing very fast and loose with facts, like the federal officials involved in promulgating this rule did the cost-benefit analysis, looked at likely exiting of the workforce, looked at the impact on medical care to vulnerable populations who would be at risk of contracting COVID if there were not a vaccine mandate put into place, and reached the judgment that it was necessary to issue this rule. This argument, like the OSHA argument, I thought did not go great for the federal government. Brian Fletcher was excellent. He's always great. But, you know, maybe slightly better for the federal government than the OSHA argument. But also, I, you know, I felt like there was a really good chance this one was going down as well. What do you guys think? I think possible it survives. Some of the arguments against this rule were so bad. So at one point, Justice Gorsuch

just starts uttering word salad of constitutional law and is like, commandeering, coercion, money, police power. And it's like, okay, yes, the states have general authority to regulate safety, health, and welfare. We are talking about federally funded facilities and federal contractors. The federal government can regulate them. This is the spending power. It was astonishing just to hear some of these things get thrown out at the role. Well, I thought it was interesting that Justice Kavanaugh seemed to be more receptive to all of this. I mean, he was sort of like, are any of these regulated entities

actually complaining about complying with this? They don't seem to be. And that's maybe he was a little, again, I think the constitutional grounds for this are more obvious. I mean, yes, there are conditions on federal monies. Maybe this is one of those conditions and it's fine. Yeah. But I agree that he seemed more receptive to the federal power argument here than he was in the OSHA case. And Barrett was sort of, seemed to be sort of floating her own theory, which is that, so this, you know, mandate actually applies to a number of categories of federally funded facilities, you know, psychiatric hospitals and long-term care facilities and end-stage renal disease facilities. Like there's a bunch of different, you know, types of facilities that get federal funds that are subject to this mandate. And she seemed to

be suggesting that maybe the federal government was on stronger footing as to some but not others of these facilities and that maybe the court should go like group by group. But this was a species of her earlier argument about the OSHA regulations. Like if you had tailored this a little more, we would be okay with it. So maybe she is against it. Totally. No, but I guess I thought with OSHA, she was suggesting OSHA should have. And so our best move is to send this back to OSHA to take a sort of finer look at issuing a narrower policy or set of policies. Here, I thought she was suggesting the court itself could sustain some but not all of the policies. But maybe I'm wrong. Maybe as to both, she would say what she would, her preferred outcome would be to say federal

government sort of start over. That would be like the court making decisions about which healthcare facilities needed that intervention, almost like the court was a court of doctors. Almost. But Neil Gorsuch tells me they're not. He just tells me they're deciding who decides. So I get it. But, you know, I guess I worry about inferring too much reasonableness from either Justice Barrett or Justice Kavanaugh's questions, because this could be a potential repeat of what we saw in the SBA cases. Absolutely. When we heard the arguments and it seemed like they understood why the lawsuit should be allowed to proceed against the various state officials. And then surprise, surprise, we get

the opinion that we did. And so we know where their sympathies lie, in particular, Justice Kavanaugh and his articulation of the major question doctrine in these cases was extremely favorable and sympathetic to the challengers. So I just don't know. But I think it's more likely that the CMS rule would survive than the OSHA one. I think the OSHA rule is definitely going down. I don't know if I would confidently make the same prediction about the CMS rule, but it's going to be a closer case than I think it should be. Even if it's a closer case and the rule survives, we're not at all predicting that that's a foregone conclusion. And I think you're totally right that we all have to take the lesson.

You know, Kavanaugh and Barrett are new to the court and they may just be, you know, kind of performing more openness during oral arguments than they in fact are with respect to how they're likely to vote. So I think we should probably take the lesson of SB8 and sort of say, like, we can't read too much into their questions. I wanted to highlight an exchange that I alluded to previously, which was Justice Gorsuch's attempt to bring us back to the horror show that was the constitutional challenge to the minimum coverage requirement of the Affordable Care Act. People familiar with that challenge might know that that oral argument devolved into a series of hypotheticals about, well, if the federal government can require people to get health insurance, can they also require you to buy broccoli? Can they require you to exercise? Can they require you to do this? And Justice Gorsuch was like, you know what?

Let's do that here. What do we do about the fact that Congress has never, sorry, that CMS, not Congress, we don't have Congress here, CMS has never before said among its standards a vaccination requirement or any other health standard with respect to employees and actions they must take outside the work environment. So, for example, could Congress, sorry, CMS, also implement regulations about exercise regimes,

sleep habits, medicines and supplements that must be ingested by hospital employees in the name of health and safety. And would the government argue that does not control the tenure of those employees? And then once again, maybe to wrap up her greatest hits album, Justice Kagan went nuclear. And let's just play. Dracarys. Yeah, went full on Dracarys and articulated why it has to be the case that the secretary can mandate a vaccine that will literally save lives of vulnerable people in the care of these federally funded facilities. So let's play that clip here. Well, all the secretary is doing here is to say to providers, you know what?

Basically, the one thing you can't do is to kill your patients. So you have to get you have to get vaccinated so that you're not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients. I mean, that seems like a pretty basic infection prevention measure. You can't be the carrier of disease. I feel like this was her version of the Hippocratic Oath. Like, just don't kill people.

Do no murder. Exactly. And maybe very, very quiet and maybe very quietly responding to Sam Alito, which is like, no, actually, if you've dragged these things down, like you are going to be killing people. I will accuse you of murdering people. Yeah.

So any other concluding thoughts? This is definitely getting upheld, right? Oh, yeah. Most definitely. Awesome. Biden administration. Great day. Oh, yeah. You guys like everybody pour out the champagne in the SG's office. Yeah. No, I mean, no, it was an incredibly rough argument. One thing I don't think we've mentioned is that the Alabama Realtors, the case striking

down the CDC eviction moratorium came up a bunch of times. So I think everyone needs to just inter the fiction that cases disposed of on the shadow docket do not create precedent. Like that's done. You should have known that from Fulton. I mean that was obvious from Fulton. But they didn't explicitly cite Tandon. And maybe they won't explicitly cite all the realtors here because they're again trying to preserve the fiction. But like it should be done.

Like a dementor, it will just haunt this oral argument. That's right. Waiting to suck the soul out of every advocate. Yeah, exactly. I mean, you know, the sort of broader, one broader point is it matters a ton for purposes of the next phase of the pandemic, what the court does with these policies. But it also matters a lot for sort of the future of governance and administrative capacity. But that goes to the point of, you know, this argument happening in the shadow of Omicron, like, everyone is getting Omicron. And they're just sort of like this sort of abstract question, what can agencies do? Like, is COVID confined to the workplace? Like, obviously not. But like, are there any steps that we can do to curb this

amidst the raft of disinformation about how this is contracted, what the severity of it is, and what the long-term effects are, which we don't know. Anticipating, as I think we all are, that this OSHA rule gets struck down, I'm going to be very curious to see if this provokes any change in the posture that the White House and the president have to the Supreme Court. We have talked about previous podcasts or on previous podcasts about possible confrontations between the Supreme Court and the Biden administration. And this is going to be one. And, you know, are they just going to be like, yep, like we are just willing to live under your rule forever? Is this a Schecter poultry moment? Right. Is it? And it's not just that the court is striking down, you know, a very significant administrative policy. It's that they are doing so on the basis of arguments

that are so obviously steeped in ideology, politics, divorced from law, divorced from facts, and that could do real harm to people. And I just, I want to know what's going to happen as a result. Like, are we going to get another book report thanks to everyone for listening thanks to melody rowell for producing another bear of an emergency podcast thanks to eddie cooper for making our music and thanks to strict scrutiny intern rege john page for bringing justice kagan extra shots of coffee as Kagan Extra Shots of Coffee.