While we wait.
I was really hoping that by yesterday the Supreme Court would have stayed the Emergency Temporary Standard that was issued by the Occupational Safety and Health Administration. Maybe today?
Meanwhile, here are some excerpts from the oral argument, which took place on Friday morning and lasted two hours! My comments, such that they are, are in lilac. If you’d like to hear/read the whole argument, you can listen to the audio and get the transcript here. I think it’s safe to say that Justices Breyer, Kagan, and Sotomayor will not be voting to stay the ETS.
Excerpts from oral argument in National Federation of Independent Business v. Department of Labor
Justice Thomas (on the requirement that an ETS be “necessary): “[N]ecessary can be really necessary or not necessarily really necessary.” ROBIN – Hehe.
Scott Keller (attorney for parties who want the stay and believe the ETS is unlawful): “The emergency power must be necessary. The regular power that OSHA wields has to be reasonably necessary or appropriate.” (Emphasis added.)
Justice Thomas: “So the fact that . . . it’s emergency sort of ups the ante, that ‘necessary’ has to be more restrictive?”
Attorney Keller: “Yes . . ..”
Justice Kagan: “[W]hy isn’t [the ETS] 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. . . . 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. . . . [OSHA] has done everything but stand on its head to show quite clearly that no other policy will prevent sickness and death to anywhere like the degree this one will.”
Chief Justice Roberts: “[H]ow focused on the workplace does something have to be before you will say that OSHA can regulate it?”
Justice Breyer: “[T]here were three-quarters of a million new cases yesterday. New cases. Nearly three-quarters, 700-and-some-odd thousand, okay? That’s 10 times as many as when OSHA put this rule in [on November 5]. . . . let me not exaggerate — nearly three-quarters of a million people, new cases every day? . . . How can [a stay of the ETS] conceivably be in the public interest with three-quarters of a million people yesterday, goodness knows how many today — I don’t want to repeat myself . . ..” ROBIN – Justice Breyer later mistakenly referred to “750 million new cases.” That is almost twice the population of the United States. But his estimate of 750,000 or so is accurate.
Attorney Keller: “The question is not what is this country going to do about COVID. It’s who gets to decide that.” ROBIN – Those opposed to the ETS argue that any vaccination or testing mandates should be issued by the states or through federal legislation enacted by Congress, not by OSHA.
Attorney Keller (later): “Congress and states and governors wielding emergency power are the ones that have the power . . . over vaccines. The idea that OSHA would be the agency in the federal government that’s not even under the Department of Health and Human Services, that does not have expertise over communicable diseases like the [Food and Drug Administration] or [Centers for Disease Control and Prevention] maybe, that would just be a very odd place for Congress . . . to lodge such a sweeping power over the American people.”
Justice Gorsuch: “Why should the Court grant immediate relief [in the form of a stay]?”
Attorney Keller: “[A]s soon as businesses have to put out their plans and this takes effect, workers will quit. That itself will be a permanent worker displacement that will ripple through the national economy.”
* * *
Justice Alito: “Is the question whether this ETS is necessary to protect the health of the general public, or is it whether it is necessary to protect just employees and not even all employees but only unvaccinated employees, people who have chosen independently not to be vaccinated and do not want to be vaccinated?”
Attorney Keller: “[T]he latter . . . As OSHA has said, the grave danger here is to the unvaccinated worker who is exposed to COVID.”
* * *
Justice Sotomayor: “There is a masking mandate, no different than there is when we tell people that if there are sparks flying in the workplace, . . . workers . . . have to wear a mask. So that’s no different in my mind than this. So this is not a vaccine mandate. . .. You forget that there are certain states now that are stopping employers from requiring vaccines. . . . Why shouldn’t the federal government . . . have a national rule that will protect workers?”
Attorney Keller: “Congress would have to clearly state that in a statute . . ..”
Justice Sotomayor: “So what’s the difference between this and telling employers, where sparks are flying in the workplace, your workers have to be — wear a mask?”
Attorney Keller: “When sparks are flying in the workplace, that’s presumably because there’s a machine that’s unique to that workplace.”
Justice Sotomayor: “Why is the human being not like a machine if it’s spewing a virus, bloodborne viruses?” ROBIN – In addition to the unfortunate comparison of unvaccinated persons with machines that “spew,” COVID is not a bloodborne virus.
On the other hand, the word on the street is that the vaccine mandate issued by the Centers for Medicare & Medicaid Services, which applies to most employees of most employers who receive Medicare or Medicaid funds, will be upheld and that injunctions against the CMS rule in 25 states will be dissolved.
Benjamin Flowers, Solicitor General of the State of Ohio (on behalf of those favoring a stay and opposing the ETS): “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 that state and local officials are far better positioned to understand and accommodate.”
Justice Sotomayor: “. . . Omicron is as deadly and causes as much serious disease in the unvaccinated as Delta did. . . . We have over 100,000 children, which we’ve never had before, . . . in serious condition and many on ventilators.” ROBIN – Rochelle Walensky, head of the CDC, said in an interview with Brett Baier of Fox News that the actual child hospitalization figure was much lower. Justice Sotomayor’s figure won her four Pinocchios in the Washington Post “Fact Checker” column. Glenn Kessler cited data from the Department of Health and Human Services stating that the child hospitalization figure was about 5,000 as of Saturday.
* * *
Justice Alito: “[P]rotection of vaccinated employees . . . was not the basis for this rule, is that correct?”
Attorney Flowers: “Correct. . . . [OSHA has] to be internally consistent. And their own logic is that nobody who’s vaccinated faces a grave danger. . . . [OSHA has] defined numerical probabilities that are . . . grave in one case and not grave in the other, and that is the definition of irrational.”
* * *
Chief Justice Roberts: “It seems to me that 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. . . . [T]he idea that this is specific to particular agencies really doesn’t hold much water when you’re picking them off . . . one by one. . . . I don’t know that we should try to find . . . what specific thing can we find to say, oh, this is covered by OSHA? . . . [T]he more and more mandates that pop up in different agencies . . . I wonder if it’s not fair for us to . . . ask . . . well, why doesn’t Congress have a say in this, and why don’t the — why doesn’t this be the primary responsibility of the states?”
U.S. Solicitor General Elizabeth Prelogar (for the government): “Congress absolutely has a say in this, and it spoke here. It passed the OSH Act . . . and promulgated Section 655(c) specifically to empower OSHA to take action to protect workers from grave dangers . . .”
Chief Justice Roberts: “[I]t sounds like the sort of thing that states will be responding to or should be or — and that Congress should be responding to . . . rather than, agency by agency, the federal government, the executive branch, acting alone, is responding to it. . . . It seems to me that we should be looking at it as an across-the-board issue . . ..”
Solicitor General Prelogar (in response to Justice Alito’s asking whether the government would object to a “brief stay”): “If the Court believes that it needs a brief administrative stay, then, of course, it can enter it.”
Justice Kagan: “But you mean ‘brief,’ don’t you?”
Solicitor General Prelogar: “Yes. We think that there are lives being lost every day.”
Chief Justice Roberts: “Brief compared to what?”
Justice Sotomayor: “So starting tomorrow [Monday, January 10], the only thing that are [sic] required are masks, correct?”
Solicitor General Prelogar: “Masking for unvaccinated workers, that’s correct.”
Justice Sotomayor: . . . “And so, until February 9, when the testing comes into effect, that’s when the threat of — of resignations or expense comes into effect, correct?”
Solicitor General Prelogar: “Yes . . ..”
* * *
Chief Justice Roberts (in response to government’s argument that Section 669(a)(5) of the OSH Act authorizes vaccine mandates): “[Y]ou know, that was 50 years ago that you’re saying Congress acted. [The OSH Act was enacted in 1970.] I don’t think [Congress] had COVID in mind. That was almost closer to the Spanish Flu than it is to today’s problem. . . . [T]his is something that the federal government has never done before, right, mandated vaccine coverage?”
Solicitor General Prelogar: “It’s true that there has been no standard that looks exactly like this one. . . .”
* * *
Justice Alito: “Most OSHA regulations, all of the ones with which I’m familiar, affect employees when they are on the job but not when they are not on the job. And this [ETS] affects employees all the time. If you’re vaccinated while you’re on the job, you’re vaccinated when you’re not on the job. Isn’t this different from anything OSHA has done before in that respect?”
Justice Alito (later): “Is the testing alternative viable at the present time in light of the stories that we see about the long lines that are required to be tested?” ROBIN – The Biden Administration announced yesterday that it will require private insurers to cover the cost of eight at-home COVID tests per insured, per month, effective this Saturday. There will be no deductibles or co-pays. That should be more than enough to cover the cost of weekly tests for unvaccinated employees who choose the testing option, appearing to resolve a potential wage and hour problem related to the ETS. Under the ETS, employers are not required to pay for weekly testing. But if employees were required to pay for the weekly tests, the cost could be viewed as a “deduction from wages,” which could take some employees’ pay below the applicable minimum wage. If insurance covers the cost of the test, that should no longer be an issue. Now, if only we could find an at-home test . . .
Solicitor General Prelogar: “I’m obviously familiar with the . . . news stories you’re referencing, and I think that the agency could adjust if that proves to be a problem . . ..”
* * *
Justice Gorsuch: “We accept that it’s not [the Court’s] role to decide public health questions, but it is our important job to decide who should decide those questions.”
* * *
Justice Barrett: “So when does the emergency end?” ROBIN – Exactly.