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Supreme Court

Sloppy Arguments Over COVID Mandates at SCOTUS (UPDATED)

The caliber of questioning by the justices was not up to the usual standards, but the justices seemed to understand the two rules at issue present different questions.

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I have been a big fan of live audio of Supreme Court oral arguments. In most cases, I think the audio has shown how the justices carefully consider the legal questions before them, and has highlighted how the legal questions before the justices are often quite distinct from the policy questions involved. In this regard, yesterday's arguments over the Biden Administration COVID-19 vaccine requirements were an exception.

Perhaps owing to the rushed nature of the argument, or the the cases' complexity, I found much of yesterday's oral arguments to be sloppy and unfocused. At times it also seemed that justices were playing for the public audience, either making policy arguments that did not address the precise legal arguments or expressing undue concern for how questions might be interpreted (as when Justice Alito raised concerns about risk COVID vaccines might pose to some individuals).

On the sloppy side, both Justices Sotomayor and Gorsuch mangled public health statistics [but see update below]. According to Justice Sotomayor "We have over 100,000 children, which we have never had before, in serious condition, and many on ventilators." This is false, as fact checks by The Dispatch, Politifact, and Reason have pointed out.

"Flu kills—I believe—hundreds of thousands of people every year," Justice Gorsuch commented when asking why OSHA has not mandated flu vaccines. This too is wrong. According to the CDC, seasonal flu killed between 12,000 and 52,000 people per year between 2010 and 2020.

[UPDATE: This is what Gorsuch said according to the transcript posted Friday evening. Yet as several readers pointed out, this does not appear to be what Gorsuch actually said. From the audio (at around 1:50), it sounds as if Justice Gorsuch actually said "Flu kills—I believe—hundreds, thousands of people every year." If so, Justice Gorsuch's claim was entirely accurate, even if it underscored how much more serious COVID-19 has been than the seasonal flu. SECOND UPDATE: The official Supreme Court transcript has been corrected. It now reads "hundreds, thousands . . ."]

There were also several points during the oral argument in which justices made powerful policy arguments that have little to do with (or, in some cases, actually undermine) the legal justification for the policies at issue. One example comes from Justice Kagan, who was a forceful and aggressive questioner at yesterday's arguments.

In an exchange with Ohio Solicitor General Ben Flowers, Justice Kagan highlighted several reasons why people may face greater risks of COVID-19 exposure in the workplace than elsewhere.

this is a -- the combination of lots of people all going into 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. . . .

Here (and elsewhere in the argument) Kagan identified many reasons why workplace exposures to COVID-19 might be quite significant, and rise to the "grave danger" standard required by the OSH Act. The problem, however (and as SG Flowers noted), is that OSHA did not define the "grave danger" posed by COVID-19 in the workplace, or the necessity of its vaccinate-or-test requirement, in terms of such factors. Rather, OSHA focused on the number of employees on a company's payroll. That is, what determines whether a workplace is covered by the OSHA ETS is whether a given employer has 100 or more employees, and not whether workers work in close quarters, congregate in the workplace, or are indoors for extended periods of time.

[Note: Many have argued that the OSHA ETS exempts workplaces where the risk of COVID spread may be low, such as those outdoors. This is false, as I noted here. The OSHA ETS does exempt individual employees who work exclusively outdoors, at home, or on their own, but (as OSHA has made very clear) this exemption "depends on the working conditions of individual employee," and does not exempt low-risk workplaces.]

The point here is that Justice Kagan's question highlighted many reasons why an OSHA standard aimed at limiting workplace COVID-19 spread might well be lawful (and would be a good idea), but without accounting for the specifics of the standard that OSHA actually adopted. Put another way, just because OSHA may have the power to adopt a COVID-19 standard of some sort (particularly pursuant to its general standard-setting authority, which is less constrained than its Emergency Temporary Standard-setting authority), does not mean that the OSHA had the power to adopt the ETS that is at issue here.

Later in the argument, Justice Alito asked the Solicitor General whether she was aware of "any other safety regulation that imposes some extra risk, some different risk, on the employee," noting that COVID-19 vaccines might pose some risks in some contexts. While SG Prelogar did not have any examples at hand, there are actually many regulations that reduce one set of (larger) risks by introducing or increasing other (smaller) risks, and there is an extensive academic literature on the subject (including this book, Risk vs. Risk). As Justice Kagan interjected, "there are constant situations in which there are risk/risk tradeoffs, risks on both sides, but one risk vastly outweighs another risk, and that that comes up throughout regulatory space." To give one example that comes up in some workplaces: Fire retardant materials may save lives by reducing fire risks, but at the cost of slight increases in the risk of cancer.

In asking his question, Justice Alito seemed unduly concerned that SG Prelogar (or the listening audience) might confuse or misunderstand his question to suggest that vaccines are unsafe, at one point repeating the phrase "I'm not making that point" three times in succession. It was hard to hear this and not think Justice Alito's sensitivity was augmented by concern for how the question might be perceived beyond the Court.

As for what we learned at oral argument, we learned that the justices are more skeptical of the OSHA ETS than the vaccine requirement for Medicare and Medicaid providers, and this makes some sense. The former rule is overbroad and arguably in excess of OSHA's authority, while the latter would seem to follow directly from the federal government's authority to ensure that those who provide federally funded health care services do so in safe and healthy manner. The number of people on a company's payroll has little relationship to whether COVID-19 is a risk in that workplace, but when the federal government spends money to provide health care for vulnerable populations, it can take steps to ensure that program participation does not increase the risk of COVID-19.

[Note: The apparent transcript error noted above in my update underscores the value of live or same-day audio of Supreme Court oral arguments. Were it not for the ready availability of the audio, it would have been more difficult to identify and correct the error in the transcript, and that could have had a more significant, and more lasting, effect on how the arguments were reported and understood.]

NEXT: Who Decides About COVID Mandates?

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  1. Put another way, just because OSHA may have the power to adopt a COVID-19 standard of some sort (particularly pursuant to its general standard-setting authority, which is less constrained than its Emergency Temporary Standard-setting authority), does not mean that the OSHA had the power to adopt the ETS that is at issue here.

    Okay, so what does that mean if, for instance, OSHA comes back with a revised standard to address Court objections? What if OSHA says its rules apply to every workplace, regardless of payroll size? Do you think, Adler, that this anti-regulatory Court majority will meekly fold up its tent and say, "Good on you, go out and regulate?"

    1. Do you think the Biden administration would impose a rule that is obviously arbitrary and capricious, just to spite the Supreme Court?

      Okay, obviously it would, but why do you think that would reflect badly on the Court?

    2. More Democrat mandates, please. They seem to be working so well.

    3. SL - by the time osha comes back with a new rule, it will almost certainly be addressing yesterday's problem. By the time OSHA does issues a new rule, the third major wave will be ending , the vaccine will not be very effective for the subsequent variants (somewhat similar to the ineffectiveness for the omicron variant). Similar to mandating last years flu shot for the current years strain. The current vaccine mandate doesnt require a booster,

      The broader point being is the mandate as currently designed and the potential modification to the mandate will be far less effective than planned.

  2. How is it ever a good idea to coerce people to act against their will? I hope that any facility that accepts Medicare and Medicaid starts refusing to take it and ignores any mandate

    1. How do you tolerate center lines and tax deadlines, Ice Trey?

      Do thoughts of stop signs and red lights keep you up at night?

      1. Tax deadlines, poorly. Center lines, stop signs and red lights better because it's in my self interest to follow traffic laws because I don't want to smash up my expensive automobile.

        1. You sound disaffected and alienated, IceTrey . . . a misfit in modern society who will never persuade the mainstream to respect your childish, unprincipled, anti-government crankiness.

          1. That's ok. It's always a small cadre of intellectuals who really change things. The Continental Congress was 55 guys. Some of the smartest men to ever live.

            1. Is Trump Supporters: Cadre of Intellectuals the successor to Trump Election Litigation: Elite Strike Force?

              Do you recognize that your side has been losing the culture war for more than half a century in America?

              1. When were libertarians ever winning the culture war?

                1. Are you libertarian, rather than conservative . . . just like the Volokh Conspiracy?

                2. We're winning it on only one front I know of: Gun rights.

          2. OK, Boomer. When can we expect your resignation? You need to be replaced by a diverse.

    2. So you want for tens of millions of Americans to suddenly be without a healthcare provider?

      During a pandemic?

      Go play in traffic, dude.

      1. No I want the government out of healthcare entirely. Don't you?

        1. No I want the government out of healthcare entirely. Don't you?

          No. I want the government to continue to regulate the safety of treatments and devices, the competency of medical professionals, and set standards for health care facilities, and so on, so that I can be more confident that I'm not being treated by a quack or sold snake oil. Of course, I could look up peer-reviewed research for myself for every drug a doctor suggests I take, check into his professional history to make sure he is a legit doctor, and find out how medical facilities should be built and equipped and maintained for patient safety so that I would recognize when they weren't safe, but then I'd probably be a doctor by then.

          And that doesn't even get into regulating health insurance. Or did you read the whole list of what treatments and medicines are covered by your plan before you signed up for it and paid the company?

          1. All of that can be done privately. There could be a UL of healthcare.

            1. No, it can't.

              The market doesn't do well with the class of people who can't pay much.

              It'd be fine for you, just ignore the millions who are left to die.

      2. Healthcare stinks except for technology. The government is the entire cause of the stench.

  3. Other than Thomas, the justices are always playing for the camera. The sloppy questions serve that purpose—attracts media.

    1. 1. One of Prof. Adler's main points is that the questioning was not typical.

      2. Justice Thomas participated extensively in these arguments, and his questions didn't strike me as qualitatively different from anyone else's.

      3. If the justices are "always playing for the camera", it seems odds that they're so adamant about prohibiting cameras from capturing them.

      4. "The justices intentionally asked dumb questions so people would pay attention to how dumb they were" doesn't strike me as highly plausible.

      Other than that, great point!

      1. Thomas, in particular, has started participating ever since the remote sessions started- he's always hated the free-for-all, but seems to enjoy the "everyone go in order" questioning that the Court retained even after it started in person sessions again.

      2. The lady doth protest too much, me thinks.
        Just an observation from 44 years of watching the justices control the narrative about themselves. They coyly hide behind their robes, then pop out with some political observation that they promise never crosses their minds. When called on it, they say "who me?" and flutter their eyes.

  4. One of the problems around the actual deadliness of Covid has been the reporting. Did someone die of Covid? or did they die with Covid?
    In Humboldt County, California there was a motorcyclist who plowed into a tree on Highway 36. The first on the scene were county sheriffs, who called for an ambulance, which transported the injured man to the county hospital, where he died.
    The hospital reported to the coroner that he had tested positive for Covid - or his corpse had - so he was reported to the state as a Covid death. In this county the coroner reports to the sheriff, so the sheriff made the coroner change the cause of death to vehicular accident. This was seen from the start by the sheriffs, but how many others were counted that shouldn't have been? Alameda County, California say they may have over reported Covid deaths by 30%.
    No wonder Gorsuch and Sotomayor are confused.

    1. Why would an apocryphal story about a motorcycle crash in California lead to Justice Gorsuch overestimating flu deaths by an order of magnitude?

      1. Gorsuch undercounted them by an order of magnitude or two, not overestimated them.

      2. Gorush said "hundreds, thousands.."
        not hundreds of thousands

        Always better to check source documents, in this case the audio.

      3. Well but did he?

        Worldwide he was right, the CDC said 152-575k deaths occurred from the 2009 flu season.

        But even if he's talking about just the United States, then he wasn't that far off the estimated range.

        This data is from CDC NCIRD via Wikipedia:
        2017-2018 estimated 52,000 uncertainty interval (37,000 – 95,500)
        2018-2019 est: 28,000 UI: (19,000 – 97,000)
        2019-2020* est: 20,000 UI: (18,000 – 80,000)

        So 2 of the just the last 3 years the upper range of the uncertainty interval is spitting difference of 100,000.

      4. By the way while I'm no mathematical expert, your use of the term "orders of magnitude" seems incorrect.

        I hope you will find this discussion useful:

        "Many pretentious writers have begun to use the expression "orders of magnitude" without understanding what it means. The concept derives from the scientific notation of very large numbers in which each order of magnitude is ten times the previous one."

        https://brians.wsu.edu/2016/05/19/orders-of-magnitude/

        1. The (incorrectly transcribed) "hundreds of thousands" implies more than one, that is, at least 200,000 or 300,000. Those numbers are ten times the typical range of 20,000 to 30,000. The 2017-2018 season was unusually bad.

        2. If you're going to play obnoxious pedant, it's desirable to understand the issue yourself first, you innumerate buffoon.

          1. That’s what I was trying to explain to you.

        3. Kaz,
          Why did you expect precision from the innumerate<

    2. "Did someone die of Covid? or did they die with Covid?"
      Oaky, there are some obviously gross errors. But for the most part, this question is a denier's dream chant, because COVID-19 was a primary contributing factor to the death, even though the heart attack finally killed the patient (for example).

      1. The government grants extra reimbursement to hospitals for diagnosed Covid cases. While we’d like to think each death certificate is totally accurate, if you pay more for Covid deaths, you’re gonna get more of them.

        1. Love the handle!

          I think that sometimes cause of death is a little fuzzy. I'm surely not a doc, but IIUC clotting is a common problem w/ covid patients, so they are commonly given anticoagulants. If someone is in the hospital for covid dies of a brain bleed or thrombosis, what's the cause of death?

          This isn't only a covid problem - if you are bedridden for several days following a hip fracture, there is the same issue - did you die of a brain bleed (which might have happened with or without the hip fracture or anticoagulants) or thrombosis (which might have happened anyway, or because you are bedridden with too low a dose of anticoagulants), etc, etc.

          All that said, there are a lot of people dead who would be alive if covid-19 hadn't jumped from monkeys/escaped the lab.

          1. It’s a lot worse here, because the federal government was reimbursing (reportedly $30k) for COVID-19 cases. So, everyone going into a lot of hospitals was being swabbed, and coded for COVID-19 if hey were tested positive (even with very high PCR cycle counts). Then, regardless of cause of death, if they died, they were counted, based on the coding for COVID-19. There are estimates that well under half of the reported COVID-19 deaths were actually “of” COVID-19, and the rest were “with” COVID-19.

            1. It’s a lot worse here, because the federal government was reimbursing (reportedly $30k) for COVID-19 cases.

              Sadly, that's not even close. As I laid out back in August 2020 back when the money was being doled out, it was about $75k per COVID admission for the first round of funding and about $50k each for the second round.

              And that was gravy money -- above and beyond anything else the hospital might collect from the patients and/or their insurance. Anyone who knows anything whatsoever about billing practices in the medical system and still thinks that sort of free money sloshing around didn't sufficiently incentivize a LOT of loose counting just isn't being honest with themselves.

              [Side note: I literally could not find my prior post using Google. After switching to DuckDuckGo, it popped right up. The big G is becoming increasingly useless for its sole stated purpose.]

              1. Weird the worldwide numbers are about within a factor of 2 of our fraudulent numbers, then, even in countries that don't have this incentive you claim.

                1. As is typical, you have absolutely nothing to say in opposition to the rather straightforward proposition that when you offer $50-75k a head for ticking a box over a claim that often can't and generally won't be verified, that incentivizes people to tick the damn box.

                  Instead you propose... "the error is only about 2x -- no chance of fraud there at all!"

                  Pretty weak even for you.

      2. Nico - There is a lot of discussion regarding people dying with covid vs dying because of covid with some people implying that as many as 1/3 of deaths have been falsely attributed to dying because of covid.
        While there is very likely to be some cases that fit into the category of being miscoded, I would think that no more than 5% have been improperly coded (likely range is 2%-5%). That being said, healthy skeptic is reporting that based on data provided by the Minn DOH, the miscoding in children may be as high as 20%-30% in Minnesota. Healthy Skeptic is reporting that there have been zero or near zero deaths in MN of healthy children.

        In summary, I would defintely agree with you and discount attribution of deaths of covid when it is death with covid in the adult population. Based on the MN data, it appears to be a legitimate complaint in the pediatric and adolesent population.

    3. Where do you get your wonderful stories? You know, the ones with no source, no corroboration, and 100% bullshit.

        1. You're saying that this case, which happened in Orange County, Florida, is the one JohannesDinkle was referring to when they said that in "Humboldt County, California there was a motorcyclist who plowed into a tree on Highway 36"?

          1. So you're saying it's not a one time thing that nobody heard about?

  5. Why? Because people stink at numbers, even associate justices. "We have over 100,000 children, which we've never had before, in serious condition and many on ventilators," for example -- an error 1.3 orders of magnitude in size.

  6. Even if we had 100,000 children at death's door, they aren't the people the rule is meant to protect.

    1. Which makes me question why the justice felt the need to bring that up at all.

      1. because she already decided how she would vote before hearing the case? It cannot be more obvious, we are just not allowed to point out the fact

        1. Who is preventing you from pointing that out?

          And are you really suggesting that you don't think the justices should have spent any time thinking about how to resolve this case over the last month?

      2. "Why do you hate children" is the response for anyone noting that from the smug leftists.

  7. That’s not what Gorsuch said. He said “..hundreds, thousands…”

    Go back and listen to the audio. The transcript is wrong.

    1. Not Gorsuch; Justice Sotomayor said 100,000.

      1. And Gorsuch was claimed to have replied that "hundreds of thousands of people die of the seasonal flu every year".

        Others have said the audio sounds like he said "hundreds, thousands"

        1. Gorsuch's statement makes no sense in context if he said "hundreds, thousands"; that's not comparable to the death toll of COVID or even polio (for which vaccination in children has long been mandated), so why would flu have any relevance to steps taken against a much more serious disease?

          1. Why doesn't it make sense in context? OSHA regulates risks that lead to far fewer deaths than the flu. If it has always had the power to mandate vaccination, why didn't it do that before?

            Vaccinations in children are mandatory for them to attend public schools, not as a general matter. The better analogy for that is whether the government can mandate vaccinations for its employees.

            1. From the transcript: "We have flu vaccines. Flu kills, I believe, hundreds of thousands of people every year. OSHA has never purported to regulate on that basis."

              This makes sense as an argument, but is based on a falsehood; influenza does not approach COVID in severity.

              With the claimed correction: "We have flu vaccines. Flu kills, I believe, hundreds, thousands of people every year. OSHA has never purported to regulate on that basis."

              Why would OSHA promulgate regulations for a disease which is so much less a burden on medical resources or the economy? "Here's another bad situation, why aren't you doing the same as in the current situation about that other thing?" only makes sense if the other situation is close to as bad as the current situation. And this is Gorsuch's response after he said "What do we make of the fact that Congress -- that OSHA has not traditionally mandated other vaccines for other hazards that could pose a grave -- grave risk, some might say. The flu kills people every year. Other grave diseases do, too." and Prelogar responded that COVID-19 is an unprecedented pandemic. It would make no sense to rebut the assertion that COVID-19 is unprecedented with a disease that kills so many fewer and is less contagious than even the original COVID variant and burdens medical resources less than COVID.

              Gorsuch makes no mention of contrasting the non-response to flu with the response to less serious risks that are regulated; he's only comparing diseases, and this makes little sense if he's not asserting that the other diseases are comparable to COVID. Indeed, "OSHA has never purported to regulate on that basis" contradicts the alternate context of comparing to regulation of risks that are not diseases but kill fewer than the flu.

              I listened to the audio; it sounds to me like he said "hundreds of thousands" even if the "of" was not very clearly enunciated.

              And even so Gorsuch was still spreading misinformation. There have been mandates for flu vaccination in limited contexts like health care workers and the military, even though no flu has been as bad as COVID since 1918-1919 (when flu vaccines did not exist). Polio was a scourge before vaccines were developed and schools mandate polio vaccination for children (in some states, for private schools as well); as a result, it's almost completely gone in the US and OSHA could reasonably expect that many US workers were vaccinated as children and are not at risk anyway (as the CDC points out in its web pages on polio).

              1. That's a lot of words to avoid answering the question and to equate random other mandates with OSHA mandates while still injecting an imagined "of" into what Gorsuch said.

                The polio vaccine predated OSHA, but not by so much that any substantial number of workers at OSHA's creation could have been vaccinated as children. Salk's vaccine was broadly tested starting in 1954, only 17 years before OSHA was created. If you are going to complain about misinformation, you should spread less of it yourself.

                1. the polio vaccines wasnt widely distributed until approx 1962-1963 time frame.

                  early distribution was halted after several children developed polio from a live virus (as I recall)

                  1. NIH sez: "In April 1955, Salk’s vaccine was adopted throughout the United States. The incidence of paralytic poliomyelitis in the United States decreased from 13.9 cases per 100 000 in 1954 to 0.8 cases per 100 000 in 1961"

                    The Salk vaccine was a (supposedly) killed vaccine, which nonetheless sometimes gave people the real disease, and had other disadvantages. It's the one that left a scar on your arm, I think. The replacement (Sabin) was an attenuated virus administered orally (sugar cube).

                    1. You're thinking of the Smallpox vaccine, that's the one that typically caused a scar. (Both me and my wife have them.)

                      Both the Salk and Sabin vaccines for Polio could cause cases of polio under certain circumstances; Manufacturing errors in the case of Salk, and occasional genetic recombination that restored virulency in the case of Sabin.

                    2. "You're thinking of the Smallpox vaccine, that's the one that typically caused a scar."

                      Duh, you're right.

                2. Your question was why it didn't make sense in context; because you were apparently unable to understand context without painstaking literal details, I gave you more words. But I suspect that you are actually more dishonest than stupid, close as it may be.

                  Gorsuch did not say anything about other kinds of regulation; he spoke only of other diseases. And those diseases were less serious and had more limited mandates, but mandates still. Worse disease, stronger mandates.

                  If you want to complain that OSHA didn't exist when polio vaccines first appeared, take it up with Gorsuch; it was his example. If workplaces somehow now became the site of polio outbreaks comparable to COVID, I expect that OSHA would be requiring polio vaccination there. Go read the page on polio at the CDC website; polio in the US is under control, largely from childhood vaccines supported by school mandates, so OSHA need do nothing about polio.

              2. The major difference between the polio vaccine and the other vaccines such as small pox, measles vs the covid vaccines is that they are highly effective for life or near life (30-50+ years) vs the covid vaccines which are typically less than 50% effective after 6 months. There are indications that the effectivenness for the omicron variant is near zero after only a few months.

                https://www.medrxiv.org/content/10.1101/2022.01.07.22268919v1

  8. The left just wants to whip everyone into a frenzy. They did this on January 6th with MEGADEATH ULTRA KILLING INSURRECTION ALMOST TOPPLED THE US GOVERNMENT!!!! And now it is MILLIONS OF PEOPLE ARE DYING UNLESS YOU TELL EVERYONE TO GET THE VACCINE NOW JUST LOOK 100,000 KIDS ARE DEAD BECAUSE WE DON'T HAVE THIS MANDATE!!!!

    The entire narrative of the Left has become complete fiction and almost like something that belongs in the Onion (before it started sucking....)

  9. Justice Sotomayor's question, "So what’s the difference between this and telling employers, where sparks are flying in the workplace, your workers have to . . . wear a mask?" reflects the unfortunate misunderstanding of the factual predicate on the part of those Justices who are, seemingly, inclining to uphold the mandate: (a) the sparks also expose *other employees* to danger; and (b) since covid vaccines have been undisputably proven not to be sterilizing, and vaccinated employees are transmitting the virus at about the same rate as vaccinated, the protection of *others* is not attainable through a vaccine mandate. Accordingly, had OSHA meant to minimize the likelihood of employees' exposure, OSHA would have required a uniform masking in surgical or higher grade masks (since they do not eliminate transmission, but all studies invariably demonstrate that such masks substantially reduce transmission). Thus, contrary to Justice Sotomayor's belief, the OSHA's vaccine mandate seeks to minimize the likelihood of death of the employee at issue, not *other employees,* but the choice how the employee at issue wants to die (i.e., his/her choice between taking chances with being sick with covid that might prove not deadly or risking to take a vaccine and experience, e.g., VITT, which has more than ten times likelihood of death and over twenty times risk of severe post-illness incapacity than covid) is a matter that falls outside the scope of OSHA's authority. Indeed, many employees requesting exemptions merely cited their internal gut feeling that they would experience severe side effects, plus no doctor could state with any degree if certainty whether a person would or would not experience VITT, even if the person had recently experienced a CVA and is on anticoagulants. In fact, completely healthy persons died of VITT. And while their number might be small, this low percentile is of no comfort to them: since they had only their one life.

    1. I find this comment weird on at least two levels- (1) the government's power to prevent people from committing suicide is clear under court precedent, a precedent that conservatives tend to favor (Washington v. Glucksberg), and (2) OSHA clearly has the power to protect employees from themselves. If workers decide "we'd really rather not have safety devices on this machine, we'll take the risk so that it is more convenient to operate", that isn't enough to override an OSHA mandate.

      Paternalism by the government is a complex philosophical topic, but it isn't barred by the Constitution and also isn't barred by the OSHA statute.

      1. "OSHA clearly has the power to protect employees from themselves."

        In the workplace. It is very far from clear that OSHA has the power to protect employees from them selves using measures that extend outside the workplace.

        1. Slyfield, a lot of the protection you get in a dangerous workplace extends outside of the workplace. Keep the guard on your compressed air grinder, and a shattered grinding disk may not send shards through your belly and out your back, thus improving your life outside the workplace.

          1. If the worker has his own compressed air grinder in his own basement workshop do the OSHA regulations reach his personal grinder? My understanding is that the answer is and must be no.

            I do not agree that your grinder example is counter to my argument.

            While it may affect quality of life outside the workplace, both the risk of injury the regulation is concerned with and the OSHA regulation targeted at preventing it are exclusive to the workplace.

          2. It's demonstrably true that hard hats help prevent needless head injuries. Does OSHA have to right to mandate industrial workers wear them at all times, including in the home after hours?

            1. Nothing like that has happened, or been proposed.

              1. No, this is like that, in the sense that, once vaccinated, you can't take it off when you walk out the door.

                And keep in mind the question at hand isn't, "Would it be a good idea if OSHA had this authority?", but instead, "DOES OSHA have this authority?"

          3. Your argument proves way too much. Obesity increases a lot of workplace risks. Can OSHA mandate a maximum body mass index of 30 for employees of covered companies? Would it be acceptable if they allowed "BMI under 30 or body fat under 10%" because heavily muscled people can have high BMIs?

      2. Respectfully, I disagree. The concept of suicide, i.e., an intentional action taken with the goal to end one's life, is qualitatively different from willing to take the risk of a covid infection. For instance, flu infections might be deadly to some people, but flu vaccines are not mandatory (and the same applies to many other similar wide-spread bacterial and viral infections that might lead to fatality but could be prevented by vaccine, e.g., cervical cancer is notoriously more deadly and could be prevented with a substantially lower number of breakthrough cases). Indeed, had it been otherwise, and had this suicide prevention concept been taken to it's logical conclusion, governmental authority to prevent suicide could be so infinitely extended that, with a healthy dollop of imagination, way too many human activities could regulated under an umbrella hypothesis that they might prove fatal to one to two percent of people who engage in these activities.

        1. The government already has those powers. See the drug laws.

          1. Well, it exercises them, anyway.

            But, "has" them? Only at the state level.

        2. Vaccine mandates have been legal in this country since 1809. Upheld by Scotus in 1902 Jacobson smallpox case , people without vaccines could be fined. And George Washington required that all troops be vaccinated against smallpox way back in 1777. So lets not pretend this is something new and novel. From Pew: Of the 16 immunizations the CDC recommends for children and teens, all 50 states (plus the District of Columbia) mandate diphtheria, tetanus, pertussis (whooping cough), polio, measles, rubella and chickenpox. In addition, every state except Iowa mandates immunization against mumps. (The diphtheria, tetanus and pertussis vaccines usually are given as a single combined shot, as are the measles, mumps and rubella vaccines.) Except for the chickenpox vaccine, which became available in the United States in 1995, all those vaccines have been around for 50 years or more.https://www.pewresearch.org/fact-tank/2021/10/08/states-have-mandated-vaccinations-since-long-before-covid-19/

          1. The difference between the vaccines you mention and the covid vaccines is the effectiveness

            those you mention have 90+% effectiveness for life / 20-30+years vs the covid vaccines which are tend to be less than 50% effective after 6 months for the delta and alpha variants. Based on early information , The effectiveness for the omicron variant may be as low as 20-30% after 2-3 months. See the Kaiser study.

            Its misleading to justify mandating the covid vaccine based on the effectiveness of other vaccines.

      3. Alito spoke to this point. I’m not sure I agree with him, but I think the distinction he made should be addressed. He said ordinarily courts don’t allow workers to waive or onject to a regulation because a company saves money by not implementing a safety measure, it gains by not implementing it, and it is in a position to coerce workers to waive their safety as a condition for keeping their jobs. But in this case, employers lose nothing from vaccinated workers, so they have no incentive to coerce them not to vaccinate. He said this makes this situation different.

        1. I heard that comment. Alito is confusing the reason for the rule with the rule.

          The rule is that there is no libertarian anti-paternalism principle in American law. Not only does it not exist in OSHA law, but it doesn't exist elsewhere as well.

          The reason in the OSHA context may be what Alito says it is, but that doesn't matter. There just isn't a limit on paternalist OSHA regulations.

      4. So we can declare you a danger to yourself without evidence and drug you up forever to prevent it? How exactly are Democrats like you different from other authoritarian bugaboo regimes in history?

    2. vaccinated employees are transmitting the virus at about the same rate as vaccinated, the protection of *others* is not attainable through a vaccine mandate.

      I assume you mean "vaccinated employees are transmitting the virus at about the same rate as unvaccinated." But that isn't much of an argument unless you claim the rate of infection is the same for both groups.

      1. No evidence that it is different.

        1. Bruce,

          You're full of shit, as usual.

      2. Yes, indeed, you are correct, and thank you for the correction. As for your observations as to the rate of infection, I am not entirely sure I follow, since -- if a vaccinated person spreads the infection at about the same rate as an unvaccinated, provided that they operate under the same precautionary measures -- then the issue of vaccination becomes a personal choice, which is done by weighing the risk of a severe infection (or death) against the risk of having severe side effects of vaccine (or dying), and I cannot see OSHA's power to regulate this aspect. Again, thank you for correction, my apologies for the typo (there were many, alas: it's hard typing on a cellphone when the autocorrect is unfriendly :-).

        1. if a vaccinated person spreads the infection at about the same rate as an unvaccinated, provided that they operate under the same precautionary measures -- then the issue of vaccination becomes a personal choice,

          OK. There are two factors involved here, the rate of transmission and the probability someone is infected to begin with. Let's call the probability a vaccinated worker is infected p(v) and the probability an unvaccinated worker is infected p(u). Let's assume that the probability of transmission is the same for both, p(t). Then the chance a vaccinated worker transmits Covid is p(v) x p(t) and for unvaccinated it is p(u) x p(t). If p(v) < p(u) then a vaccinated worker is less likely than an unvaccinated one to transmit the virus.

          In numerical terms, say you have 100 workers, 50 vaccinated, 50 not. Because the vaccinated are less likely to be infected there are only 20 cases out of the 50, while there are 40 in the unvaccinated group.

          If both have a 10% chance of transmitting the virus then the vaccinated are going to infect fewer people than the unvaccinated, even though the rate is the same.

          (Of course, you need really need at least two transmission rates, depending on whether you are talking about transmitting to vaccinated people, but that won't change the outcome.)

    3. "OSHA would have required a uniform masking in surgical or higher grade masks (since they do not eliminate transmission, but all studies invariably demonstrate that such masks substantially reduce transmission)"

      This is demonstrably false, and only potentially true in a limited subset of papers if by 'substantially' you instead meant 'significant (but with small effect size)'.

      There are no good studies done during the pandemic which found an effect of masks, so let's get that out of the way. No RCT have been done with Covid-19 that have shown any effect. (There's exactly one RCT study done, in Denmark, testing only protection of the person wearing the mask, and it showed no effect).

      There are almost 100 years of studies done before Covid-19 on other respiratory viruses like Flu and the common cold. None of them show a 'substantial' reduction in transmission. Most of them fail to find an effect at all.

      The scientific consensus in late 2019 was that surgical masks had no effect on respiratory virus transmission. N95 masks may have an effect, but it's small. (Cloth masks certainly don't do a thing). We then conveniently forgot that during the pandemic, because telling people to wear masks made it look like we were doing something.

      So there's no good evidence in the literature of a 'substantial reduction in transmission', where substantial would have to be understood as a large effect size.

      Observational studies are garbage. They don't have good controls, and therefore, cannot adequately test the null hypothesis. They frequently aren't even based on any measurement of actual mask wearing, but just on the existence (or not) of government mandates. They completely fail to control for changes in other behavior. (We know, from RCT studies done before the pandemic, that social distancing does reduce the spread of respiratory viruses, for example, so if you don't control for differences in social distancing, your study is worthless).

      Stop spreading fake news.

    4. and vaccinated employees are transmitting the virus at about the same rate as vaccinated,

      False.

      VITT, which has more than ten times likelihood of death and over twenty times risk of severe post-illness incapacity than covid)

      Falser.

      1. Here is a link one to many articles addressing mortality rate of VITT: https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.uptodate.com/contents/covid-19-vaccine-induced-immune-thrombotic-thrombocytopenia-vitt/print&ved=2ahUKEwiP4tyC_aP1AhVGj4kEHVYJBbIQFnoECAsQAQ&usg=AOvVaw0xvo18efm4WF5rjSR8HVsy. You can run a quick search by putting search terms "VITT mortality rate." It appears that CDC, FDA, etc. agree that it's about 22%, which is about ten times higher than 2% mortality rate for covid (and survivors very often experience CVAs with all disabilities ensuing from having multiple strokes). The rationale underlying CDC's recommendations is that VITT is very rare, which is true, albeit this statistical fact doesn't matter to those who get VITT. You can, but of course, disagree with any statistical research, but a mere statement "falser" is an opinion, not an argument, isn't it?

  10. I would say to Justice Alito that some employers, and particularly for health care providers, flu shots may be mandated.

    1. If OSHA believed they had the authority to issue such a mandate (mandatory flu shots), why hadn't they issued such a mandate years ago?

        1. Your link is in no way responsive to my argument.

          This Article debunks the idea that a federal statute’s novelty is an indication that the statute violates constitutional principles of federalism or the separation of powers.

          I'm not talking about constitutional principles of federalism or separation of powers, but simple interpretation of the statute from which OSHA derives all of it's authority.

          If OSHA believed that the act gave them the authority to mandate employees be vaccinated, why hasn't OSHA ever used that authority before Biden ordered them to find a way to mandate COVID vaccinations?

          1. Slyfield, are you questioning necessity? Can you show that is any business of the Court?

        2. Somebody apparently doesn't understand the difference between "debunking" and "disputing".

      1. "If OSHA believed they had the authority to issue such a mandate (mandatory flu shots), why hadn't they issued such a mandate years ago?"

        Presumably because they didn't believe there was anything significant enough to require it on but decided a worldwide pandemic was.

    2. Not a 'moderate' position.

  11. Justice Barrett asked the Solicitor General whether the "grave danger" could continue and allow emergency action with avoidance of agency rule making notice and comment rules. The response was yes, for years, with a muddied reply to post facto notice and comment within 6 months after promulgation. Doesn't this frighten any liberal justice? Imagine in 2024, the new president finds "grave danger" in teen gun deaths in Chicago or drug deaths in public schools across the country and a temporary emergency regulation is enacted by the Dept of Education. Locker room searches in all public schools in Chicago, mandatory drug testing of all employees of all educational facilities receiving public funds.
    Perspective is lacking even at the Supreme Court.

    1. I'm sure they will change their tune, as leftists always do, when nazi fascist Trump is President again....

      1. Trump got stomped by seven million votes (after pulling off a three-cushion trick shot to come from behind at the Electoral College the first time). There are fewer bigots, rural residents, religious slack-jaws, backwater rubes, and White Americans every day in our nation (as the elderly conservatives take their stale, ugly thinking to the grave and are replaced in our society and electorate by better, younger, more diverse citizens). How is Trump likely to win in an America that continues to improve in a manner that disadvantages Republicans in national elections?

        Just not enough half-educated, rural, superstitious bigots left in modern America.

        1. You are not going to have a good time come the revolution....

          1. I have certainly had a good time watching wingnuts like you -- and the Conspirators, and their fans -- get stomped into irrelevance by their betters throughout my lifetime.

            Let us know when you think the clingers are going to diminish, let alone reverse, the tide of the culture war -- and stop being America's deplorable, worthless losers.

        2. I laugh every time I see you refer to and individual as a diverse. Oh, Artie. It must cause you great consternation to see the inroads conservatives made with minorities in the 2020 election. Remind me: how many Republican-held House seats were flipped to D in 2020? What's your excuse?

          1. No one said that White hayseeds have a monopoly on stupidity. Plenty of stupid brown people too. And when they see the anarchic frat house that the republican party has become..a place where they can let their freak flag fly...their gonna sign up

            1. Good thing you prog “betters” are here to tell us “hayseeds” what’s best for us. You progs are so predictable and binary…

              1. I must admit, it can be cathartic

  12. What puzzled me was why this exchange was not fatal to the governments case. In context, Alito framed OSHA regulations as "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 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.

    JUSTICE ALITO: I mean, suppose, this is a little science fiction, but maybe it will illustrate a point. Suppose that this protection were provided not by the administration of a vaccine but by waving a wand over employees when they arrive at work and suppose that wand also had the capability of taking away this protection when the employee leaves work.

    Would OSHA have the authority to tell employees you must --we will --we are going to wave --you must have this wand waved over you when you arrive, but you can't have it taken off when you leave?
    GENERAL PRELOGAR: No, I don't think that OSHA would have that authority.

    Seems to me, right there, the government conceded that they don't have the authority to enforce a rule that carries over outside work.

    1. Sounds sort of stupid to me.

      The wand isn't an option here, so the analogy is pointless.

      If you want to imagine stuff, imagine a work situation where facial hair presents some kind of hazard. Could OSHA make a rule that required workers to be clean-shaven in those places? Would the fact that the workers couldn't instantly regrow their beards and mustaches when leaving work matter?

      Come on.

      1. "If you want to imagine stuff, imagine a work situation where facial hair presents some kind of hazard. Could OSHA make a rule that required workers to be clean-shaven in those places?"

        I dunno if they can :-), but they do - beards can interfere with respirator seals, so if you need a respirator, you may not be able to have a beard. Or at least one that interferes ... I think there might be exceptions for beard styles that don't overlap the seal area, but don't quote me on that. N.b. that the powered respirators may provide the same protection w/o beard issues, so those may be an alternative.

        first hit searching

        1. ...and I immediately thought 'what about Sikhs'?

          OSHA's views on that. That BTW, links to a discussion of religious objections to hard hats; I didn't go down that rabbit hole.

        2. Absaroka, I first let my beard grow long ago, in the 1980s. I was doing steel fabrication, and company policy exempted people with beards from doing respirator jobs—like welding inside tanker truck fabrications. If you had a beard, the foreman passed you by, and gave the job to someone who didn't have one, like me. One day of that, and I grew a beard. No problem afterwards. It was a union shop, at the Morrison-Knudsen company.

          1. So you let other people do the dirty, hazardous work. To each their own, I guess.

            1. In heavy steel fabrication, there aren't any jobs which aren't dirty and hazardous. It was a matter of what kind of danger and discomfort you preferred. Some guys preferred to be in the tanks. I didn't.

      2. What if the beard related risk OSHA was claiming was not particular to the workplace?

        On another thread on this, someone raise the issue of contaminated drinking water in the work place. Would that give OSHA a mandate to regulate municipal water quality on its own separate from any other federal agencies regulating water quality?

        1. Slyfield, I'm pretty sure that if you scatter red herring all over the workplace floor, OSHA can make you clean them up, as a slipping hazard.

      3. "The wand isn't an option here, so the analogy is pointless. "

        Hypotheticals are just that, hypothetical.

        1. Sure, but some are on point and others aren't. This one wasn't.

      4. That is no imaginary scenario bernard.
        Plutonium workers are not allow beards because respirators will not seal over them.
        Nothing prevents the guy to applying his fake beard after he leaves work

        1. But a fake beard is not a beard. I want my freedom!!! [Stomps foot.]

          Anyway, thanks for providing an example of an actual rule that carries over.

          1. I know this bernard , because I was denied entry despite having all the clearances and authorizations. The alternative would have been a full body respirator as is used in BL-4 facilities

      5. bernard11, it was perfectly on point. The OSHA rule is wild over-reach. The analogy illustrates it, and the governments response was telling. Take a look at CJ Roberts colloquy with SG Prelogar (after Justice Thomas' second set of questions) - the whole case will turn on what he said (much in the same vein as Alito).

        1. XY,

          What you are in effect arguing is that OSHA can make no rule, no matter the danger they are trying to address, if the rule carries over after work.

          That makes no sense.

    2. Seems to me, right there, the government conceded that they don't have the authority to enforce a rule that carries over outside work.

      No. You misunderstand. Saying that they don't have authority to enforce a rule that solely affects workers outside of work does not mean that they don't have the authority to enforce a rule that carries over outside work.

    3. " Seems to me, right there, the government conceded that they don't have the authority to enforce a rule that carries over outside work. "

      If you are stupid enough to believe that, that explains many of your comments. A legal blog is not for you -- maybe find a blog about stocking store shelves, or fetching parked cars outside a restaurant, or delivering pizzas.

    4. "Seems to me, right there, the government conceded that they don't have the authority to enforce a rule that carries over outside work."

      Or the answer is that of course they don't . . . when having it only apply during working hours is an available option. If there was a way to vaccinate people at work and remove it when they went home, then requiring it at all times even when it didn't affect them at work would be absurd. The same way you can apply a dress code at work but can't make them wear the uniform at home. But for things where there isn't an option to apply it only during working hours, it may still be reasonable to apply it generally.

      1. Sigh. Didn't mean to bold that much. I wish there was an edit feature.

  13. Covid's been around for two years. We've had the vaccines for a year. Hasn't there been plenty of time for OSHA (or some other agency) to adopt a regulation through normal notice-and-comment procedures? And hasn't there been plenty of time for Congress to pass a law expressly authorizing OSHA (or some other agency) to adopt a regulation?
    Did anyone ask and did anyone answer such questions?
    Or does everyone assume that our government is so broken that we can't expect it to function?

    1. They had to wait until the Pfizer vaxx was fully approved by the FDA.

      1. Actually, the Pfizer version being utilized is still not FDA approved. They have a similar version that has been approved, but has ever been produced. Then, the slight of hand: the government argues, unpersuasively IMHO, that since they are equivalent, they can mandate the unapproved version for the military (since the military cannot force people to accept a vaccine available only under an EUA (which requires informed consent).

        1. What is your basis for saying Comirnaty is any different than what was approved by the FDA?

    2. Eric, yes those questions were asked during argument.

    3. This polarized congress has proven itself quite incapable of passing laws, even when people's lives might depend on it.

  14. Let’s say OSHA finds that workplace violence constitutes a grave danger and, therefore, requires all workers to carry fire arms. Or, maybe OSHA requires only the managers to be armed. Workplace violence is a hazard to health and safety and, after some, it may be a grave danger. Firearms are a method of control for a workplace violence hazard. Upholding the current ETS suggests OSHA has significantly more power to regulate our lives than Congress ever intended.

    1. Reeves, you approach the question, but fall short. The crux is whether OSHA can mandate that workplace protection firearms be fully automatic.

  15. I was likewise disappointed by the sloppiness of many of the questions ... and I don't think that it can be chalked up to the rushed nature of the argumentation. COVID has been around for a while, and I would expect the Supreme Court Justices (or at least their clerks) to have a reasonably accurate sense of the facts on the ground right now.

    I was also unpleasantly surprised by the pandering of some of the "questions" that were actually poorly disguised statements (with no interest in any actual answer). Shouldn't opinions be reserved for the actual decision?

  16. Aren't the questions, "Does a federal agency have the constitutional power under the Commerce Clause to impose a vaccination mandate on employers?", "Does the OSH Act give OSHA the power to impose a vaccination mandate on employers?", and "Is the OSHA mandate arbitrary and capricious because OSHA hasn't focused it on the right set of employers?" three different sets of questions, and shouldn't the answers to the first two questions be "yes" and the answer to the third question be "yes"? So shouldn't the Court send OSHA back to the drawing board?

    1. I would hope that the answer to the first question is 'no'. Vaccination is not an 'economic activity', it's a health activity. It may have economic effects (and some idiot justices probably believe that's enough), but if 'commerce' is to mean something besides 'everything', it can't reach that far.

      Also, the federal government has no general police powers. Public health enforcement is a use of a traditional police power, something the feds don't have, but the states do. As such, Congress never had the power to implement a vaccine mandate in the first place - it was never given that power. (The states have that power, and could choose to exercise it.)

      1. The employers who are subject to the mandate are engaged in economic activity.

        1. Congress is empowered to regulate interstate commerce... activity that is commercial in its nature that originates in one state and ends in another.

          That does not equate to regulating any activity of any actor who is also engaged in commercial activity at the same time, even if the former occurs parallel to the latter in time. Congress can't tell a trucker that they can not transport a firearm across state lines while working because of the Commerce Clause (in a sane world at least). They may have the power to forbid that action under other provisions... but the act of transporting a personal gun that will not be sold is not commercial activity and should fall out of the Commerce Clause's reach (emphasize should).

          But alas... any actual intelligent reading of the Constitution has passed by the wayside a long time ago.

          1. You may want to read Wickard v. Filburn, 317 U.S. 111 (1942), and Gonzales v. Raich, 545 U.S. 1 (2005).

            1. Why? He already summed it up: "any actual intelligent reading of the Constitution has passed by the wayside a long time ago."

  17. People work from home. Sometimes their bedroom.

    OSHA regulates the workplace.

    There are dangers in your bedroom.

    ergo, OSHA regulates your bedroom.
    QED

    1. In fact the federal government has mandates vaccination of all employees even if they work from home.

  18. How does this make any sense?

    “ And you have to be there with a bunch of people you don't know and who might be completely irresponsible. . . .”

    If you read the mandate, the whole goal is not to protect you from irresponsible (unvaccinated) people. It’s to protect the irresponsible people. The unvaccinated. It says so specifically.

    According to OSHA the person Kagan has in mind faces no danger from irresponsible unvaxxed people. Vaccines work! Remember, it was written before Omicron.

    So your exposure to irresponsible people is not relevant. The goal of the mandate is to protect unvaxxed people. From themselves.

  19. One of the intersting dynamics was Plogar’s responses to Justice Sottomeyor’s questioning. Rather than regarding these questions as helpful softballs, she responding to them as if they were traps, emphatically denying Justice Softomeyor’s premises. For example, when Justice Sottomeyor auggested that perhaps agency experts might be in a better position to make expertise-dependent decisions than Congress, the SG re-emphasized her view that the agency action fell plainly within the language of the authorizing statute, and there was no ambiguity requiring deference. She seemed to regard the idea that her position might depend on being more deferential as harmful rather than helpful to her case. She had the liberals in pocket. She had to persuade the conservatives. .

  20. One of the featurws of the right wing of this court is its tendency to transmogrify exceptions to special deference rules into stand-alone rules for special non-deference, resulting in less deference than before.

    The Alito transmogrification of Smith was like this. Originally if there wasn’t general applicability, Smith dropped out and the law was evaluated by the general pre-Smith compelling interest standard, in which the state often won if there were considerations like public health involved. Under the Alito interpretation, the existence of an exception means the stste always loses, even if the interest involved would have been considered compelling pre-Smith.

    Thr Major Questions Doctrine has been similarly transmogrified. It started out as an exception to Chevron deferences. If a statute was unambiguous or Chevron dodn’t apply, ordinary statutory construction was used. But the transmogrified doctrine trumps ordinary statutory construction. If there is a major question, ordinary statutory construction is ignored and instead Congress is required to speak plainly and specifically to a subject to autthorize an agency to act. An exception to a special deference rule becomes a stand-alone special anti-deference rule.

    1. The transmogrified major questions doctrine appears similar to Pennhurst, which also required Congress to speak plainly. But the justification for Pennhurst was protection of State sovereignty and power under the notion that a state acts as equal party to a contract. A state has to accept a limitation on its sovereignty as a condition knowingly, and this justifies the requirement that Congress speak plainly for such a limitation to be enforcible.

      But where is the structural constitutional justification for a stand-alone major questions doctrine? Government regulation is bad and Congress should decide major questions itself?

      I happen to agree. But is that really a constitutional ground? Or is it a political one?

      And what exactly makes a question major? It seems to me that the justices operate by knowing it when they see it. It seems to me that if the Court wants a more robust non-delegation doctrine, it needs to come up with a decision rule that doesn’t give it so much discretion to decide whether a delegation is authorized or not after having seen the outcome and decided whether it likes it or not.

  21. All the other arguments aside I can't get past OSHA saying they were only going to protect employees at larger companies from grave dangers. I can't imagine exceptions to wearing respirators or confined space requirements for small companies. And their arguement that it would be too administratively burdensome is just bonkers.

    OSHA is shattering their arguement that it's necessary by saying only for some.

  22. Wouldn't it be funny if all this "wild overreach" was keeping you ever so clinical libertarians alive? When the court overturns the mandate power, and they will, it is my belief that they will have our nation's blood copiously pouring through their fingers. I know it sounds horrid, but I hope that it visits the conservative majority and their families personally. The first rule of the hive is survival and they prefer to rearrange the deck chairs. Every emergency room and hospital bed in my county is full, and non vaccinated people are dying. Bury your heads in the sand by all means.

  23. "When the court overturns the mandate power, and they will, it is my belief that they will have our nation's blood copiously pouring through their fingers."
    The fear-mongering plea for authoritarianism. It worked so well in the 1930s that it is worth a reprise.

    "I hope that it visits the conservative majority and their families personally."
    You have shown excellent viciousness. Get your brown shirt ready; the authoritarian party will want you to march

  24. Funny. Reporters and lawyers at the Supreme Court must wear masks, N95 masks, not the less effective cloth variety, no less, and test negative for covid in order to be present at the hearing. Sounds pretty authoritarian. Horrors. But Gorsuch can fly free and go maskless because Covid is somebody else's problem and if they get it from him, tough luck. God's plan. Like truckers freezing on the highway. I think that it would be nice if the problem hit directly home with our conservative majority, they might obtain a more crystalline vision and maybe even a little empathy. But I won't hold my breath.

    1. "Sounds pretty authoritarian."
      No one has to attend the hearing except those arguing the case and SCOTUS personnel. Just a bit different from arresting people on the street and sending them to quarantine camps.
      "Gorsuch can fly free and go maskless because Covid is somebody else's problem"
      You got that from where? Check your underpants

  25. Quarantine camps? Now who is engaging in fetid hyperbole? I think rubber hoses and truncheons to the back of the neck will be just fine, thank you, they leave less marks.

    1. Check out the situation in Australia.
      https://coronavirus.nt.gov.au/travel/border-entry/quarantine-fee
      That is no delusion. It is fascist government policy. Maybe you prefer a black shirt to a brown shirt.

  26. I am not here to trade fashion advice with you and what happens in Australia is not necessarily germane to what is happening in the United States. But the idea of segregating diseased and potentially infected people goes back a long way, remember the leper colonies in Molokai? Even now, there is a quarantine for entrance to Hawaii and it makes a lot of sense to me. You people squawking about losing your precious freedom and at the same time potentially infecting the rest of us makes me sick. So selfish. Survival of the hive above all else.

    1. So you volunteer to be imprisoned in your home for the rest of your life, in order to prevent you from "potentially infecting the rest of us"? How kind of you!

      Be sure to never leave again, or otherwise interact in person with anyone else, because you might infect them with your demonstrated "so selfish" behavior.

      1. No, you misunderstand. I am masked, vaccinated and boosted and have demonstrated a modicum of responsibility towards my fellow citizens by doing so, I'm not a whiny libertarian bitching about his precious freedom being abridged because he or she never learned to play nice.

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