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Supreme Court

COVID-19, Major Questions, and Pouring New Wine from Old Bottles

Does it matter that the year Congress enacted the Occupational Safety and Health Act was as proximate to the Spanish Flu as to today?

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Friday's oral argument in NFIB v. Department of Labor, the legal challenge to the Occupational Safety and Health Administration's Emergency Temporary Standard mandating that large employers require their employees to get vaccinated or tested for COVID-19, highlighted some of the legal questions that arise when federal agencies use old statutory authority to address contemporary problems.

Congress delegates to agencies so that agencies can take action in the future, but the passage of time may nonetheless influence how we understand what authority was delegated, or raise concerns that agencies are acting in an unauthorized or ultra vires fashion. The repurposing of old statutory grants may even raise greater concerns about democratic accountability than the breadth of the delegation. (Chris Walker and I explored some of these questions in our Iowa Law Review article, "Delegation and Time", with a focus on what Congress could do about it.)

This issue is somewhat inevitable. One reason Congress delegates broad authority to federal agencies in the first place is so that agency officials will be able to address new and unforeseen problems without having to engage the legislature at every turn. On the other hand, it is sometimes difficult to argue that Congress authorized specific sorts of actions if the nature of the problem or the specific regulatory measures adopted were not contemplated at the time. The more time passes without legislative action, the more such concerns may grow.

In the case of the OSHA vax-or-test ETS, it is clear that Congress sought to give OSHA the power to address "new hazards" and newly discovered workplace risks (including contagions that could be transmitted in the workplace). But that fact does not resolve all of the legal questions concerning the ETS, particularly since OSHA never sought to adopt a rule of this sort in the half-century since the OSH Act was enacted.

Consider this exchange between Chief Justice Roberts and Solicitor General Prelogar:

CHIEF JUSTICE ROBERTS: . . . you're saying that Congress acted. Don't -- don't complain that Congress hasn't done anything and that -- you know, that was 50 years ago that you're saying Congress acted.

I don't think you had COVID in mind. That was almost closer to the Spanish Flu than it is to today's problem.

Now, I understand the idea that agencies are more expert than Congress. And I understand the idea that they can move more quickly than Congress. But this is something that the federal government has never done before, right, mandated vaccine coverage?

GENERAL PRELOGAR: It's true that there has been no standard that looks exactly like this one. The federal government has encouraged vaccination as this standard does and other provisions like the blood borne pathogen standard. And masking and medical testing of employees are common features of OSHA standards.

CHIEF JUSTICE ROBERTS: Well, is -- is -- is it that important consideration that we should take into effect, for example, along with the fact that the police power to take such action is more commonly exercised by the states, and we've had many cases coming out of the states and municipalities that -- that -- that -- that evidence that.

And also that it's -- yes, 50 years ago Congress passed a general provision, but I think it's certainly hard to argue, and you're doing a good job of it, that that gives free reign to the agencies to take -- I guess this is invoking the major cases doctrine, that it gives free reign to the agencies to enact such broad regulation that is -- was certainly unfamiliar to Congress in 1970.

Congress was well aware of the threat of infectious disease when it enacted the OSH Act, and OSHA has addressed disease-related risks in the workplace with other rules. Yet, OSHA never used its ETS authority in this way and, as the Chief Justice suggested, Congress has never taken action to suggest that OSHA could adopt a standard that extends beyond protecting workers while they are at work. The Chief raised similar concerns when he asked whether the OSHA ETS should be understood as a workplace safety rule, or as a "workaround" designed to evade limits on agency authority that preclude a national vaccine policy.

Implicit in the Chief Justice's questions here is a concern that an old statute should not be read as the source of authority for a "major," and largely unprecedented, assertion of agency authority, particularly where Congress has had the opportunity to confer such authority on the agency, and yet has failed to do so. In effect, the Chief expressed skepticism that agencies can pour new wine out of old bottles. Of course, this formulation raises the question of when an agency's wine should be considered "new" or a meaningful departure from what an agency has done before.

In the way he framed his questions, the Chief seemed to be channeling Justice Kavanaugh's "major rules" gloss on the major questions doctrine, which cautions courts against recognizing old statutes as a source of substantial-yet-previously-undiscovered regulatory authority. We saw the Court adopt a similar approach in rejecting the CDC's eviction moratorium.

The underlying idea is that when Congress delegates power to agencies, it delegates particular sorts of power to address particular sorts of problems. What Congress cannot be said to have done, however, is to have delegated power that can be repurposed or used to expand agency authority, at least not without a very clear indication that Congress sought to do just that. Such elephants, the argument goes, are not hidden in mouseholes. They must be identified explicitly.  I made the case for this sort of approach in my forthcoming book chapter, "A 'Step Zero" for Delegations."

There are other ways to resolve the challenge to the OSHA ETS. For example, the Court could invalidate the OSHA ETS on more narrow and traditional administrative law grounds. The Court could also conclude that the rule is lawful, or that the government's defense is sufficiently strong that no stay is warranted. Just because concerns about major questions arose at argument does not mean such concerns will drive the Court's decision. Never fear, the Court will have ample opportunity to explore the contours of the major questions doctrine when it hears West Virginia v. EPA next month.

NEXT: Emory Law School Student Government Refuses to Recognize an Emory Free Speech Forum Student Group,

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  1. So still no attempt to explain why the vaccinated, who can spread the Communist Chinese Virus as fast and as far as the un-vaccinated, do not have to be tested?

    1. That is probably because OSHA is really current on the state of the science, nor do they have an comprehension of whether the vax mandate will have any significant effect on the trajectory of the pandemic.

      1. Correction - That is probably because OSHA is NOT really current on the state of the science

        1. Prof. Adler's attempt to elevate discussion at this blog encounters the level of audience a White, male, right-wing blog attracts.

          1. White male right wing bloggers have a better grasp of the science , and the effect of the various mitigation protocols.

            I havent seen any white right blogger opposing any of the mitigation protocols that would have a positive long term effect on controlling the spread of covid. The vast majority of mitigation protocols demanded by the ill-informed left have been and always will be futile against a respiratory virus.
            The vaccines, while reducing the severity of covid infection, especially for those with health issues, are not going to have nearly as much of an impact as hoped on the achieving the long term solution,. at least not until an effective vaccine is developed (by effective 90% plus effective rate for 20+ years).

        2. Correction - That is probably because OSHA is NOT really current on the state of the science

          I mean, sure, they probably don't read a blog written by a guy who's not a scientist or medical professional who links to random pre-prints and other things he finds on the Internet.

          Hint: relying on non-peer-reviewed pre-prints is not being "current on the state of the science."

    2. An untested hypothesis and assertion. Just because you can be infected does not mean you will produce and shed enough virus to infect someone else. Furthermore the use of PCR based diagnostic tests means that you can test positive without shedding virus.

      1. Furthermore the use of PCR based diagnostic tests means that you can test positive without shedding virus.

        Goodness. Where were you a year and a half ago when we needed you to help quell the mass panic?

        1. Shedding dead virus caused some concern early on about reinfection, but didn't really cause much of a panic.

          1. Detection of shedding and calling it reinfection was the basis for the early “asymptomatic spread” myth.

            1. No, because asymptomatic spread is absolutely a thing.

              And not limited to Covid; it's a well known thing generally.

              1. Sarcastr0
                January.11.2022 at 10:11 am
                Flag Comment Mute User
                "No, because asymptomatic spread is absolutely a thing.
                And not limited to Covid; it's a well known thing generally."

                No asymptomtic is not thing, at least not as much as promoted/feared. if it was, the transmission rates would be much higher.

                1. No asymptomtic is not thing, at least not as much as promoted/feared. if it was, the transmission rates would be much higher.

                  I'm not sure where you're getting that transmission rates are lower than expected.
                  The only thing I've seen is that being outside seems to help a lot more than expected. And that's only seems - the actual statistical data is sketchy.

      2. The problem with PCR tests is they are too sensitive, not that they produce a false positive, but a meaningless positive.

        For instance if I am triple vaxxed and I spend an hour next to someone who has covid, then I'm going to inhale some of the virus, and the virus is going to infect a few cells. But if the vaccine is working against the varient I was exposed to then my immune response will keep the infection in check and I will not get covid or become infectious.

        However a PCR test is probably going to be sensitive enough to say I'm positive, where an antigen test will give me an appropriately negative result.

        1. A PCR test will test positive if you are a pickle or a can of tuna too.

    3. That's because they aren't required to indulge your fantasies.

      Current data indicates that vaccinated people are infectious for a shorter period of time than the un-vaccinated.

      1. Is that against all variants? Delta? Omnicron?

        I submit there isn't really "current" data on that question.

        I'll note all the sudden California has surged into the lead with the largest single daily infection count of any state at 112k new cases yesterday.

        I submit even if it's still true that vaccinated people are infectious a shorter time it doesn't matter, because Omnicron is infectious enough that even a short timeframe is long enough to spread it rapidly.

        1. You don't understand liberal beliefs and policy prescriptions. They start with the goal in mind and work backwards.

          Now the duration of infectiousness is super super critical because that's the only distinction he knows of.

          Tomorrow it will be something else.

          1. I understand that liberals have won the culture war and that this underlies the desperate, delusional, disaffected, virus-flouting thinking of obsolete conservative culture war casualties.

            And that the right-wing losers consequently will spend their entire live complying obsequiously with the preferences of better -- better educated, more diverse, more tolerant, living in modern, successful communities -- Americans.

            Which seems to make the clingers around here cranky enough to lash out at anything resembling education, credentials, science, expertise, modernity, progress, or the reality-based modern world.

            Carry on, virus-flouting hayseeds.

          2. I'll keep this brief so that you have a slim chance of following along.

            If vaccinated folks are infectious for a shorter period of time, then they cannot be spreading COVID as "fast and far" as the unvaccinated.

            Evidently even a straight line is too confusing for you to navigate.

            1. Hypothetical:

              Infectious vaccinated person goes to stadium for sports game.

              Infectious unvaccinated person doesn't go anywhere.

              Who most likely spread COVID more?

              1. Reality:

                You're a dipshit, and your arguments reflects precisely that.

                Those who have been vaccinated have clearly demonstrated that they are willing to take steps necessary to promote the health and well-being of themselves and those around them. There's no reason to suspect that your idiotic fantasy is reflective of likely behavior.

                I can't draw pictures for you on this site, so if words are still too complicated for you, perhaps you should just fuck right off.

                1. Let's just continue to impose progress on these clingers . . . while permitting them to whine about it as much as they like, so long as they continue to toe the line we establish.

        2. So you say there's not current data, but then you speculate your way into a thesis.

          Come on, man.

    4. Actually at many places ALL must be tested even if they have been vaccinated AND boosted. Certainly is true at my university

  2. I will point out that congress has passed several covid related bills since march of 2020, How many covid bills have been passed since the introduction of vaccines. The absense of bills modifying OSHA's athority would imply that Congress was not authorizing additional powers to OSHA.

    1. Or that it considered OSHA's authority sufficient to address the problem. Which answer is correct?

      1. The best way to find out is to reject the mandate and let Congress clarify their position.

      2. The issue of presidential versus congressional and/or state authority has existed well before the OSHA mandate or Biden's presidency.

        If congress believe OSHA's authority sufficient to address the issue, it could have spoken. This is similarly true other purported life or death matters like the CDC eviction moratorium.

        The failure of congress or the states to act does not provide any more or less authority to the executive branch, no matter how otherwise prudent the policy. That's precisely why all the assertions at oral argument about how important vaccination is to fight the virus generally or for children is largely immaterial. The only issue is whether OSHA has the relevant authority, and if so, did they properly implement it.

      3. DStraws
        January.10.2022 at 6:15 pm
        Flag Comment Mute User
        "Or that it considered OSHA's authority sufficient to address the problem. Which answer is correct?"

        Generally, the failure to amend statutes cuts against chevron type deference.

      4. they wanted the courts to decide which sadly has been Congress's go to method of resolving issues they are afraid would poll poorly if they acted.

        This way they win either way, either the courts let happen what they want and they scream justification or the courts shoot it down and they declare the courts are activist

      5. Hence ponderings if a meta law from 50 years ago covers light sabers and soylent green.

        If regulatory meta laws (laws on how someone else crafts laws you get fined for, or go to jail for) have any meaning in a democracy, they must only cover items envisioned by Congress when passed.

        This, long with much of the constitution, is designed to prevent government from arrogating powers sans the will of the people, u der constitutional authority.

        Because, you know, absent that, governments quickly pull infinite power unto themselves, to maintain their power.

    2. Joe_dallas : "How many covid bills have been passed since the introduction of vaccines?"

      Kinda hard to pass covid bills when half of Congress is controlled by a pro-covid party. As long as Republican leaders think there are votes to be gained fighting every measure against the disease & a polling advantage thru covid disinformation, nothing will get done.

      1. "As long as Republican leaders think there are votes to be gained..."

        Tell me again what you think about Democracy?

        1. "We love democracy, until we don't." -- The subtitle of both parties.

        2. I think in a democracy Democrats would not need a single Republican vote to accomplish anything. The only things that have kept Republicans relevant are (1) voter suppression, (2) gerrymandering, and (3) our system's structural amplification of backwater votes.

          The effects of those points are diminishing, however, and I expect Democrats to act to diminish the influence of each of those elements, relegating Republicans to irrelevant, alienated, bitter ankle-biting.

          American democracy is a fine antidote to conservatives ugly, bigoted, obsolete thinking. Has been for more than a half-century. Is positioned to maintain that trajectory so far as a reasonable eye can see.

          Carry on, clingers.

      2. " pro-covid party"
        Oh, your usual bs.

        1. I've given you more than one opportunity, Don, to deny the Right has systematically fought every effort against the disease, repeatedly lied about its effects & extends, and created a whole new anti-vaxx party where none existed before. Somehow you never can face those facts - preferring to run away behind a smokescreen of invective hurled back at me.

          People are needlessly dying because of the Right's populist disinformation games with a public health emergency - but you don't care in the slightest, do you? All because the fact bruises your tender right-wing sensibilities. You're the one that's full of it - and a crass hypocrite to boot.

          1. You do not live in the real world. You live in some fantasy world created by brain tenders and mind masters.

            1. That much was obvious from his assertions that Republicans are (a) "pro-covid" and (b) in control of half of Congress.

              1. Whenever nonsense numbers or a completely false take on Covid appear here, they come from the right.

                See also: every single Covid-related action, from vaccines to masks to social distancing. The right has decided they are all bad, has resisted them.
                And then blames the Administration for America's Covid response.

                1. You think grb is correct when he asserts anti-experimental-vaxx is a right-only movement?

                2. Some of us remember that Justice Sotomayor claimed, very recently, that we now have 100,000 kids hospitalized with COVID -- "many on ventilators".

                  Some of us remember that Democrats claimed that Donald Trump would push bad vaccines for political purposes.

                  Some of us remember that leading Democrats claimed it was a great idea to go out to crowded places before lockdowns kicked in, so you could catch Covid (or maybe enjoy yourself) one last time before they exercised despotic powers.

                  Some of us remember why we call you Gaslighto.

                3. Sarcastr0...Hang on a second. I listened closely to the oral argument, and I read the transcripts. Here is what I came away with. (note, I am not addressing the political BS in this thread)

                  First: Why is a workplace safety agency issuing guidelines on a medical treatment? You'd think medical or health guidelines in response to a respiratory virus would come a medical agency....like maybe the CDC? NIH? Second: Emergency? Really? We are now in year three of this 'emergency'. The emergency phase ended a long time ago. Why is an ETS warranted? And speaking of ETS, why use ETS when there was more than adequate time for review and comment (yeah, the dreaded APA beast rears its ugly head once again) Third: The major questions doctrine applies here and Congress never granted OSHA that kind of authority. The blood borne virus sidebar during oral argument seemed to go nowhere.

                  The authority to make these kinds of mandates is at the state level. Even then, my personal view is there are limits to how far state police power extends and what can or cannot be compelled.

                  The CMS oral argument.....meh. My takeaway there is that CMS is using payments to promulgate policies that should be codified in law by Congress and not an executive branch agency. I had not heard a lot of anti-commandeering questions before, so it was interesting.

                  The 'goal' here is laudable: reduce transmission of covid-19 in American society. I do not doubt the good intention. The problem is the wrong tool(s) are being used (can't use OSHA to mandate vaccines, gotta go through the states).

                4. Michael P - Do you think Sotomayor made a mistake with a number, or do you think she was trying to deceive the throngs of Americans that get their Covid info from Supreme Court oral argument?

                  Dems did not say Trump would push bad vaccines. You have one quote from Kamala Harris in a debate that no one followed.

                  The bottom line metric is where the policies are in place, and where the infections are. And it's red states open, red states infected.

                  Commenter_XY - my thesis was not about the oral argument on the OSHA case. My take is that it is within the statutory purpose of the enabling statute, but that there are nondelegation issues.

                  suboptimally aligned authorities are still granted authorities.

                  1. Gaslightro:

                    https://www.nytimes.com/2020/09/16/us/politics/biden-trump-coronavirus-vaccine.html

                    "“Let me be clear: I trust vaccines,” Mr. Biden said. “I trust scientists. But I don’t trust Donald Trump, and at this moment, the American people can’t either.”"

                    1. That seems to be explicitly pro-vaccine, chief.

                      And, again, look at who is getting vaccinated, and who thinks it's secret alien nanotech.

                      This is not a hard party asymmetry to see.

                    2. Biden was explicitly pro Covid vaccines in that speech?

                    3. What does 'I trust vaccines' mean to you?

                      Biden never came out against Covid vaccines. Neither has Trump, though he has been iffy on the vaccine-autism canard.

                      But plenty on the right became anti-vaccine after Biden took office.

                    4. In that speech was Biden saying that when the COVID vaccine came out under Trump that everyone should go out and get vaccinated under Trump?

                    5. Vaccines good. Also, Trump bad.

                      This is not hard to parse.

                    6. You're a liar. Biden was undermining the COVID vaccine just like very other mainstream Democrat.

                  2. Well I disagree right there = My take is that it is within the statutory purpose of the enabling statute.... The enabling statute makes zero refence to any kind of vaccine mandate, and Congress was surely aware that pandemics were 'a thing'.

                    Your suboptimally aligned authorities crashes right into the major questions doctrine, no? I mean, you cannot use an old statue drafted for another purpose to claim new, ungranted authority, right? If you can, there is a whole lot of mischief that can go on.

                    1. The statute doesn't specify means, it specifies a purpose. This is well within the purpose of OSHA.
                      Specifying means is not how you analyze enabling statutes.

                      You're conclusion just doesn't read the law right, at least as the state of administrative law currently stands.

                      The major questions doctrine has not come up much before this point. And it is not at all clear to me a vaccine sufficiently upends anything economically for that to apply. But it's a pretty nebulous area of law, maybe that will change as well.

                      But as it is, this is a constitutional action. The Supreme Court can, and probably will change that. But this is not a close question based on current law.

                    2. Whoa, whoa, whoa....This is well within the purpose of OSHA.

                      The purpose for OSHA is workplace safety, not to minimize risks you find in daily life. That came up during oral argument (Roberts, Alito, Kagan all discussed). Sparks flying from a machine...OSHA applies. Toxic gaseous fumes or chemical spill....OSHA applies.

                      General risk in life from covid-19, influenza, or any number of diseases....beyond the scope of OSHA. You gotta go to the states for the authority to do that.

                    3. Being contagious at the workplace absolutely counts as a safety issue at the workplace.

                      Covid has already been determined to be a higher risk than flu, etc. That's not going to fly.

                  3. S_0, you're just reinforcing my point. Sotomayor was not only wrong about the number, but about there being many kids on ventilators -- and I even quoted that part for you. You're just trying to distract from the fact that left-wingers have, contrary to your assertion, been a source of Covid disinformation since the beginning of the pandemic, and that continues to the current time.

                    1. It's so very clearly misspeaking, it's an unrealistic number. You're working hard to parallels that with the actual nonsense the right is spewing about the vaccines and Covid generally.

                    2. Misspeaking is thinking one thing another. Sotomayor clearly said what she meant, but I don't think it was an intentional lie, it was ignorance.

                      But dropping such a wild mistakes at a supreme court hearing hardly reflects well on her.

                    3. Claiming that many kids are on ventilators because of Covid is simply misstating a number?

                      It's almost jaw-dropping how insistent you are on trying to gaslight us.

                  4. Sarcastr0
                    January.11.2022 at 10:15 am
                    Flag Comment Mute User
                    Michael P - Do you think Sotomayor made a mistake with a number, or do you think she was trying to deceive the throngs of Americans that get their Covid info from Supreme Court oral argument?"

                    Sarcastro - I presume you noticed that Sotomayer heard the case remotely where as she has been present on the bench for the other oral arguments this term. Remote for dramatic effect!

                    1. That's...quite a dumb conspiracy theory, Joe.

                    2. Sarcastro -
                      sotomayer pulled that stunt for dramatic effect - how is pointing out that stunt a conspiracy theory.

                    3. Because you're making up a secret agenda behind normal actions with no evidence.

                    4. "No evidence" once again meaning "bad faith trolls on the left do not like your evidence".

            2. BravoCharlieDelta : "You do not live in the real world"

              One of us doesn't, to be sure. Let's pick out one drop from the gushing firehose of right-wing agitprop on covid. It starts, of course, with Trump.

              (1) Whose first (and only) priority is always exploiting anything or anybody for private gain. This was difficult with covid once the anti-Chinese angle was exhausted.

              (2) So instead of campaigning against the disease (with his administration healthcare officials), he decided to campaign against the public health emergency itself (against his own healthcare officials). From that decision, the right-wing pro-disease party was born.

              (3) And that soon included promoting quack cures like hydroxychloroquine. For Trump and the pro-disease party, this was a political no-brainer. You claim a burdensome emergency is no emergency or burden at all (look! a cure!), you undercut the healthcare officials you're trying to smear (they aren't telling you this miracle news, I am!), and make it all into a deepstate conspiracy (they're trying to hide this from you!)

              (4) In under two weeks, Trump publicly promoted hydroxychloroquine at least forty time. Right-wing's propaganda media would run that tally up into the hundreds over the same period. Even today there are people who die believing this worthless political bullshit.

              (5) Of course the pro-disease party isn't about quack cures alone. It lies about covid's seriousness, reach & effect. It lies about covid statistics. It lies about the covid mortality rate. It demonizes healthcare experts into Bond-grade villains. It fights every measure against the disease. Every. Single. One. It lies about the purposes and aims behind those measures, which always turn out to for some kind of shadowy motiveless government aim. And it has remade the Right into anti-vaxx - for no reason other than the crudest & ugliest of political reasons.

              (6) Google with a week-old filter and you find hospitals choked with the covid unvaccinated in Philadelphia, Green Bay, Houston, Ontario and Britain - in percentages that reach 70-80%. That's a heavy price to pay for the Right's polling gains selling a pro-disease message.

              1. https://legalinsurrection.com/2021/08/study-finds-most-vaccine-hesitant-group-is-those-with-phds/

                "People with a master’s degree had the least hesitancy, and the highest hesitancy was among those holding a Ph.D.

                What’s more, the paper found that in the first five months of 2021, the largest decrease in hesitancy was among the least educated"

                Which group are you? A "right-wing" Ph.D. with the most hesitancy, or one of the least educated "left-wing" who had the largest decrease in hesitancy?

                Educated people are vaxx hesitant. Stupid people aren't. Trust the science.

                1. The online survey of more than 5 million adults...

                  Legal insurrection is a bunch of clowns.

                  1. Pretty good 2A analysis in the Rittenhouse case. Very good analysis in the Chauvin, Potter, Aubrey prosecutions. I did not see clownish in that coverage.

                    I will grant: It can get political.

                    1. They are outcome oriented. Doesn't mean you shouldn't read them, but never rely on them alone.

                    2. You're right about that = don't rely upon alone. I do not. But I definitely follow the 1A, 2A cases there.

                  2. "A study conducted by Carnegie Mellon University and University of Pittsburgh researchers found that vaccine hesitancy is highest among those with a PhD."

                    Apparently, Gaslightro doesn't Trust The Science(tm).

                    1. Online studies are not really very good. Huge sample bias issues. Bad studies are a thing that happens, even in science.

                    2. So you're a Science Denier.

                      Got it.

                    3. I get you're using the argument you think liberals are making in an attempt for turnabout.
                      But this is actually just the strawman argument your distorted media diet *says* liberals are making, so the effect is lost.

                    4. No, you are actually denying science.

                    5. Online studies are not really very good. Huge sample bias issues. Bad studies are a thing that happens, even in science.

                      First, I'm not even sure I'd call a survey, even a valid one, a "study."

                      But second, if this is the one I'm thinking of, that result was quickly debunked, in that (a) it relied on self-reporting of things like education level, and there was evidence that people were lying; and (b) the number of people with PhDs was too small to obtain a reliable answer anyway.

                2. People,

                  I offer you BravoCharlieDelta's response as Exhibit A of the pro-disease party at work. Does he even believe his ludicrous factoid or silly website? Impossible to tell and irrelevant to boot. Because as a good Right-Wing-Bro, he's expected to show up here to put in time & effort selling an anti-vaxx pro-disease message, sincere or not.

                  It's the same with Joe_dallas and countless other commenters here. I doubt one in twenty were anti-vaxx before they got their marching orders to get in the front lines and support covid. Prior to the Right deciding there was political gain in being anti-anti-covid, the vaxx truther movement was a handful of freaks spread evenly across the political spectrum. Not any more.

                  1. Ph.D. are vaxx hesitant while stupid people are not.

                    What do you think differentiates smart people from people like you?

            3. " You do not live in the real world. You live in some fantasy world created by brain tenders and mind masters. "

              Paranoid, disaffected, superstitious, bigoted, delusional right-wingers are among my favorite culture war casualties. To the losers go . . . . the bitterness and irrelevance.

          2. grb,
            Your entire pro-covidline is tendentious. I have given you more than one opportunity to clean-up your act ad to discuss in neutral terms what reasonable preventive measures are and to describe how medically they will both respect the individual rights of citizens ans stop the spread of COVID-19 infections. But I suppose that you prefer the approach of the Australian government with both forced quarantine camps that the captives have to pay for and one of the world's fastest surge in cases.
            And yes, you are full of it - and a crass hypocrite to boot.

            1. Don, it's pretty clear to me the partisanship of the commenters you spend more time engaging with due to their Covid misinformation.

              Yes, there's a baseline issue, but the numbers are pretty stark.

              Is it clear to you?

              1. S_O.
                Of course there is a palpable division over COVID-19 policies correlated with political party.
                The the presumption that one party is the party of health through fascism and the other is the party of death through disease is entirely unhelpful to our nation. It is not even obvious that the mandate plus punishment approach will produce long term outcomes for the Nation. Around the world may approaches are being tried.We'll see.

                1. I'd agree that it's reductive, if there weren't GOP politicians going to bat with exactly these bad takes.

                  Conversely, I am not seeing many Dem politicians coming out for fascism.

                  This is not an area where both sides are the same.

                  1. "I am not seeing many Dem politicians coming out for fascism."
                    Ah. that is just what mandates with penalties are, especially when it is combined with hate speak toward people with whom one disagrees. Responsible people don't say that they want to make the life of non-vaxxers a living hell.

                    As you have seen many times. I strongly advocate vaccination against SARS-CoV-2 unless one has a compelling medical reason.

                    1. That's not what fascism is. Fascism isn't government action you don't like. Neither is it demonizing speech.

                      France has not become fascist.

                      I know your position on vaccines, which makes your bothsidesing the Covid response pretty amazing to me.

                      Like, I don't think every campus is a liberal hellhole, but I also think the left is doing much worse than the right regarding campus speech, even though they're my compatriots.
                      (Though soon elementary curricula...)

                    2. Australia has become fascist in it's covid response. Putting people who have been exposed and tested negative into camps is way over the top. Using rubber bullets and clubs against people peaceably protesting lockdowns seems pretty fascist to me.

                    3. But I am not both siding. One can encourage people to vaccinate without demonizing them and essentially encouraging hate-filled attitudes toward those unvaccinated.
                      And Macron is becoming more authoritarian day by day. Austria is even further along and Australia is far down the road.
                      After the 4 years of the Orange Clown, America is not well served by the vicious back and forth between the sheep and the lepers.

            2. Don Nico : "I have given you more than one opportunity to clean-up your act ad to discuss in neutral terms..."

              An epic Don Nico response. First comes prim pomposity, followed by a veneer of obfuscation to evade all substance, topped by overheated rhetoric (forced quarantine camps?).

              The problem, Don, is that the Right's anti-anti-covid campaign usually has nothing to do "what reasonable preventive measures are" or "respect(ing) the individual rights of citizens". That's just your latest smokescreen covering your latest retreat.

              Selling quack cures isn't covered by your platitudes. Convincing political followers the covid infection and mortality numbers are conspiracies lies doesn't fit your pieties either. The vicious fatwah against healthcare officials like Fauci falls outside of all your dodges. And the right's corrosive ant-vaxx propaganda is a whole other world from your excuses. There's seems to be a lot you're missing here, guy.

              And you're not THAT blind, are you? Yet here you are, cleaning-up after the Right's covid birtherism like that guy with a pan & shovel who trails the elephant in a parade. Pretty demeaning job ya got there, Don.....

              1. grb,
                You mind is closed. You have a nasty habit of insulting and or demeaning those with whom you disagree. You seldom have anything to say about the epidemiology or medical science regarding SARS-CoV-2. Instead you launch a boring smokescreen of of highly politicized and usually partisan ranting.
                Don't respond to my posts and I won't respond to yours. That is my proposal to you.

                1. "grb,
                  What makes you such a hater. Did your mom punish you too frequently. Or maybe the first kid who beat you up in school was from a Republican party."

                  Looks like you've fallen off your high and mighty horse, Don, and decided to sling mud like the normies at whom you turn up your nose.

      3. GRB - Not sure what planet your are on -
        A) the house is controlled by democrats
        B) the sentate is 50/50 with the tie breaker going to dem VP
        C) no bills have been introduced the Dem party to amend the applicable statute in either the house or the senate.

        1. So now Joe_dallas believes a one-vote majority in the Senate (via the VP's tie-breaking vote) allows passage of anything the Dems desire ?!?

          Well of course he doesn't - but he probably doesn't believe half of his anti-vaxx bullshit either. It's just something to say. Meanwhile, hospitals across the country are choked with unvaccinated covid patients....

          1. GRB - do you have any concept of how a bill becomes law?

            Yes - 50/50 with a dem tie breaker does allow passage of anything the Dems desire

            Though you fail to note that no bills have been introduced by any Dem representative or Dem Senator to amend OSHA's authority.

            1. Yes - 50/50 with a dem tie breaker does allow passage of anything the Dems desire

              Apparently you are unfamiliar with Senate rules.

          2. grb,
            What makes you such a hater. Did your mom punish you too frequently. Or maybe the first kid who beat you up in school was from a Republican party.
            Your hate-filled rhetoric is tiresome.

      4. If half of congress is Pro-COVID that would suggest that Congress does not in fact endorse the OSHA vaccination mandate.

        1. The unvoted on 'sense of Congress' is not relevant under just about any constitutional doctrine.

    3. They gave $100,000,000 to OSHA to combat COVID in the workplace. What do you think that was for, hand sanitizer?

      1. It certainly wasn't for the vaccine mandate, because the way that is set up the cost to OSHA's budget is minimal.

      2. Congress knows how to write legislation if it wants to make it's intent clear, merely authorizing funds doesn't authorize any unspecified action.

        1. The action was already authorized. Allocating funds merely confirms that Congress understands itself to have already authorized action.

  3. While I hope the request for the stay goes in favor of freedom, I am looking forward to oral arguments for the law, itself. I hope those will include a medical/viral/scientific testimony to point out that neither natural infection nor vaccination prevents contagion for days in advance of detection by symptoms or testing. If you are exposed, you can shed virus even while the immune system, trained in advance by the virus (alive, dead, or engineered), tries to stop it before you get symptoms. In other words, vaccination and natural infection only helps the vaccinated, not others, when it comes to contagion (although it may shorten this time period which helps reduce viral load). As for the masks, they probably make it worse for the wearer to continuously inhale their own viral shedding for days until detected. I must say that so far,many judges have done a better job at cost-benefit calculations than bureaucrats and politicians; they've sided with patients against hospital prohibitions on treatment for the dying.

    1. Precisely the level of insight a White, male, obsolete, right-wing blog attracts, cultivates, and deserves.

      Carry on, clingers. So far as your betters permit.

    2. "I hope those will include a medical/viral/scientific testimony to point out that neither natural infection nor vaccination prevents contagion for days in advance of detection by symptoms or testing."

      There is no guarantee that they won't go there, but it's irrelevant to the question of whether or not OSHA has the authority to impose the vaccine mandate, so I would hope that they don't go there.

    3. In favor of freedom from idiotic unvaccinated coworkers spewing covid everywhere? I couldn't agree more.

      Or in other words, you absolutely have the freedom to quit your job and spread covid around the comfort of your own home.

      I'm actually quite pleased that the 3% or so stupidest people might voluntarily leave the workforce over this. It can be hard to get rid of the underperformers. This will go a long way towards helping American businesses clean house. We should do this more often.

      1. I literally cheer every time I read about some vaxx-hole dying from the vaxx.

        It brightens my day.

        1. They're not bothering you if they get vaccinated - the vaccine isn't contagious.

          If liberals smuggling every time an anti-vax person dies of Covid is shitty, why are you not even more so?

          1. Are vaxx-holes trying to force or impose anything at all on me?

            Or are they just being Big Pharma experiments on their own and leaving everyone else alone?

          2. Well, because he's cheering about imaginary deaths, while the liberals you describe would be cheering about actual ones.

            1. No one has died or suffered from the vaxx?

              You can't be serious.

              1. It marginally increases the odds of blood clots, and pericarditis. Quite low odds.

                You don't know the difference between correlation and causation, I think.

                1. As far as you know, has anyone died from the vaxx?

                  1. Out of the billions worldwide? I'm sure a small number.

                    But even then, it's hard to find causality when it's an increase in risk - that risk may have occurred anyway.

                    But you've got your hateful performative screed to type out on the Internet, so any port in a storm, I guess.

                    1. Is David right or wrong when he said deaths from the vaccine were imaginary?

                      Or are you going to next argue he was "Sotomayor Correct"?

                    2. He was right.

                      You're a pedant, and no one needs to buy your nonsense.

                    3. So you acknowledge people have died from the vaxx, and David says that people haven't died from the vaxx and you say he's right and I'm wrong.

                      He's Sotomayor Correct! Completely and absolutely wrong on the facts, but still right!

                    4. I strongly suggest that folks of all views read carefully the explanatory page from Our World in Data from the University of Oxford.
                      Forget the blah-blah, live by the numbers.
                      https://ourworldindata.org/covid-deaths-by-vaccination

                    5. I strongly suggest that folks of all views read carefully the explanatory page from Our World in Data from the University of Oxford.
                      Forget the blah-blah, live by the numbers.
                      https://ourworldindata.org/covid-deaths-by-vaccination

                      Don, because you don't want to admit to yourself that grb is right that Republicans are the pro-disease party, you misinterpreted BCD's claim as being saner than it was. BCD is not talking about people who died from covid after being vaccinated, which is what your link is about. He's talking about people being killed by the vaccine.

                    6. David,
                      I actually did not misinterpret BCD's comment. But the number is so small that there are no papers in responsible (non-predatory journals) about the topic.
                      Don't make assumptions. As for "pro-disease party," that nickname serves no interests whatsoever except to divide the nation. We don't need it and the opposite is a very disturbing trend toward executive power grabs worldwide,even if the impulse is well motivated.
                      Unlike the Roman Republic, the modern state puts no short term limit on authoritarian executive powers.

              2. No one has died or suffered from the vaxx?

                Suffered? I mean, my arm hurt for a day.

                Died? Well, I believe the CDC has identified deaths in the single digits, all from J&J rather than the two mRNA vaccines. So that's pretty much imaginary, yes. 9 out of 247,000,000. Within rounding error of zero.

        2. Open wider, BravoCharlie Delta. Guys like me have even more progress, science, reason, and modernity to shove down your all-talk, whining, right-wing throat.

          And make no mistake, clinger. You will comply, just as you have throughout your deplorable life.

          Until replacement, of course. Upon replacement, you can stop doing as your betters prescribe. Your soul may belong to a fairy tale, but your on-this-planet life belongs to the liberal-libertarian mainstream.

          Any questions, clinger?

          1. Yes, one question. Does your worn out, unimaginative schtick ever get as boring to you as it does to the rest of us?

        3. BCD,
          Your spewing hate does not help the nation anymore than grb's does from the other side of the abyss

          1. "hey Jews, shouldn't hate Nazi's, guys, it's not very Jewish of you and is harming Germany!" - Don Nico 1929

            1. Well, you're one to mute.

              I haven't seen a purer asshole in quite some time.

              1. Bravo, S_O.
                I am taking your advice.

              2. lol wow I'm glad Reason has a "safe space" button for cowards and crybullies.

                1. The button is for saving time.

  4. Implicit in the Chief Justice's questions here is a concern that an old statute should not be read as the source of authority for a "major," and largely unprecedented, assertion of agency authority

    Now do the Constitution and the “independent legislature” argument.

    1. Could you elaborate on the hypocrisy you think you've sighted? I don't think I follow.

      1. Sorry, meant that as a response to your next comment.

        1. Basically everyone agrees that the law passed by Congress unambiguously grants OSHA the power to do what it's doing. The SCOTUS conservatives are on a desperate hunt for a reason to ignore the law anyways in this case.

          Maybe the law is too old (Roberts), maybe it's too "cryptic" (Kavanaugh), maybe it's too broad (Gorsuch), maybe it's too commie (Alito), maybe it's too narrow (Thomas), maybe it's too blunt (Barrett). They're all grasping at different outcome-oriented straws.

          1. Basically everyone agrees

            I'm not sure I've ever seen a qualifier do more work in a sentence. Well done.

            1. I didn't want to unfairly exclude the confused right-wing dingbats from crazytown. But you're right, I could have said "everyone who matters," including all of SCOTUS.

            2. Brian, fine then, please explain how OSHA's actions are outside the specific text of the authorizing legislation. Without reference to interpretive song and dance like major questions doctrine. Just make a textual case.

          2. "Basically everyone agrees that the law passed by Congress unambiguously grants OSHA the power to do what it's doing."
            How in the world can you claim that? On what evidence?
            I am speaking about your antecedent clause, "Basically everyone agrees."

            1. He laid out his reasoning right after - looking at the rationales offered by the conservative Justices in oral argument, none of them were textual.

              1. Right. And actually the point gets made explicitly a few times in the argument. Not even the challengers / states are seriously claiming that the grant of authority is deficient. They do suggest that maybe the policy isn't "necessary," which is a statutory requirement, but that argument doesn't get much traction. (Thomas and Barrett each bat it around in different ways, but even the opposing lawyer conceded that "necessary" just means, at most, that OSHA was required to explore alternatives, which they obviously did.)

  5. And what happened to “legislative intent doesn’t matter; only the words in the law matter”? Textualist for me but not for thee, it seems.

    1. Words are often ambiguous, which is why there is a debate about how to resolve the meaning. Courts have interpreted that "Congress shall pass no law [...] abridging the freedom of speech" to mean that both states and the federal government can only pass a narrow range of laws that make people legally liable for speech. What does that mean for your argument?

    2. When the words in the law are being intentionally misinterpreted by the Executive to give more power to the Executive.

      1. Which specific words do you feel are being misinterpreted?

  6. If the sole question were one of statutory interpretation, you'd have a point.

  7. The sheer unprecedented nature of this action should be sufficient to declare this ETS invalid.

    1. What do you think makes it unprecedented? An actual reason, or just something you heard on OAN?

      1. So what is the precedent for OSHA to mandate vaccination?

        1. Gee, what could it be, lets think about this. Oh yeah an infectious disease like the flu, but 10 times more deadly, that is transmitted as an aerosol. So anytime you encounter people at high density you get transmission to a large number of them which creates the potential for the exponential increase in the numbers of that infection. What is the primary location where that situation will arise, often, oh yeah the workplace and schools.

          1. That is not a precedent, that's a panicked whine that disagrees with the OSHA's standard.

          2. Dstraws "So anytime you encounter people at high density you get transmission to a large number of them which creates the potential for the exponential increase in the numbers of that infection."

            Except exponential increase - doesnt , wont and hasnt happened, all the waves have followed the stnd Gompertz curve.

            1. Joe,
              Of course, infection cannot follow an exponential curve for very long. However early growth can be indistinguishable from exponential growth.
              For late times the behavior of the infection rate is highly diverse and almost never a Gompertz curve even for a short time. The range of functional behaviors is not modeled by any of the published models of disease propagation in space and time. In some countries, one sees damped oscillatory behavior in other there are distinct waves well-modeled by a series of Gaussian (or super-Gaussian) functions.
              Fourier analysis of the infection curves reveals no standard frequency spectrum of infection and reinfection. That is the case whether countries have high of low rates of vaccination

        2. Hepatitis gets you the vaccine element and fire safety gets you the economy-wide generic risk element as well as the risk-balancing element.

          1. You're entirely wrong on the first half, and absolutely short on details on the second half. Do you think that OSHA can arbitrarily use "economy-wide generic risk" or "risk-balancing" rationales for any rule because they have previously regulated some unspecified fire risks in a workplace?

            1. I'm entirely right on both halves. The question was what's the precedent. I gave you a couple. You still haven't come up with any aspect of the the rule that's _un_precedented. Because it's not. You've got nothing.

              1. The very essence of the rule -- "mandatory vaccination", in OSHA's own words -- is unprecedented. You just aren't being objective enough to recognize it.

                Now answer the question: Do you think that OSHA can arbitrarily use "economy-wide generic risk" or "risk-balancing" rationales for any rule because they have previously regulated some unspecified fire risks in a workplace?

                1. The hepatitis rule is a "mandatory" vaccine. (Neither rule is actually mandatory of course.) So there is precedent for vaccination rules. I'm not sure what your problem is.

                  I don't think OSHA needs rationales like that anyway. They can do any rule within their authority. The question was precedent. Precedent isn't necessary -- an action can be legal and unprecedented. There's a first for everything.

                  But, precedent can be a guide. In case you were worried whether OSHA is allowed to do rules for things that exist in every workplace and beyond, there is precedent for that. Not that there's any statutory reason to think they couldn't do such rules, but it's comforting to know that they already have.

        3. Your tendentious framing is nonsense.

          The nature of the rule is workplace safety, not vaccinations.

          There may be nondelegation issues, but this is within the enabling statute.

          1. Projection is a hell of a drug, and Sarcastr0 is a hell of druggie.

  8. If there is ever a case to he made for OSHA requiring a vaccine, it would have been to require healthcare workers and others with a high likelihood to be exposed to blood or bodily fluids to get the Hep B vaccine. But the bloodborne pathogens standard, issued right about 2000 (too lazy to look up the exact date) doesn’t require anyone get a vaccine. It only requires employers to offer the vaccine and it requires workers to sign a declination form if they don’t want the vaccine. If OSHA could have required a vaccine, that was the standard to do it and OSHA refrained. For most healthcare workers, bloodborne pathogen exposure is clearly a workplace hazard.

    In the case of Covid, it’s not solely workplace hazard. It’s a community spread disease. OSHA has never regulated community spread diseases like the flu or a common cold. Nor has OSHA ever required a hazard control that permanently alters a human like a vaccine would. Further, in no case does OSHA require workers to use a hazard control that can inadvertently cause death or serious harm. Though rare, the risk of harm from a vaccine is a potential hazard. In fact, section 5,a,1 of the OSHAct required employers to provide a workplace free of known hazards - yet a vaccine is a known hazard, even if the risk is extremely improbable.

    1. That last sentence seems odd. The vaccine is not in the workplace. The employee is.

      1. As the vaccine would be demanded as a condition of employment, it is properly considered a workplace hazard;i.e., absent the workplace the hazard would not be engaged.
        In fact, the hazard free workplace is a misnomer. There are many workplace harzards that are delimited but not made zero. Radiation work, must meet the ALAR standard, not be made zero.

    2. Hep B is also a community spread disease so???

      The OSHA rule also doesn't require covid vaccination so???

      Fire retardant materials that OSHA requires can also cause deadly cancer, so???

      Are you arguing against yourself or what's going on with you?

      1. Randal,
        "Fire retardant materials that OSHA requires can also cause deadly cancer"
        As usual the world is more complex that the simple OSHA requirement. In the early days of Fermilab (near Chicago) a long tunnel led to the 12 foot liquid hydrogen bubble chamber. The wall of the tunnel were cover with fire-retardent materials per regulation.
        A fire started near the front of the tunnel the flame -retardant fumed to try to extinguish the fire. BUT those fumes were heavier than air causing a strong downdraft of fumes and a strong draft of fresh air driving the fire toward the hydrogen. Fortunately a well designed secondary extinguisher system stopped the fire in the nick of time and space.
        OSHA regulations are not enough. In this case they could have led to a catastrophic explosion. Good sense and high quality safety engineering are what is most important.

    3. As you pointed out, hepatitis is a blood-borne pathogen. By default, OSHA requires employees who work with potentially contaminated blood to be vaccinated for their own safety.

      OSHA also lets employees opt out of the hepatitis vaccine. Can you guess why?

      If there were an occupation that required employees to BLEED ALL OVER THE WORKPLACE, you can bet that OSHA would require them to be vaccinated against hepatitis, no opting out.

      1. OSHA requires no such default: https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.1030 . ThomasReeves correctly articulated the standard.

        1. You obviously don't understand the word "default." Since it's an opt-out scheme (the employee must affirmatively decline), the default is vaccination.

          1. The penalty-free ability to opt out means there is not mandate or requirement for vaccination. Full stop. The requirement to document that someone declined a vaccine is not even close to the same as a requirement that the person be vaccinated.

            1. I guess we agree to agree. And in the case of the covid rule, there's not even a requirement for the employee to go through that documentation exercise. So the covid "mandate" is even weaker than the hepatitis one.

              1. Read the OSHA ETS. CFR 1910.501(d)(1): "The employer must establish, implement, and enforce a written mandatory vaccination policy."

                If you disagree with their language, take it up with them. Everyone reasonable recognizes OSHA's Covid vaccine mandate is, yes, a mandate.

                1. Oh I see, you're just trolling.

    4. I suppose that's why Sotomayor was claiming Covid is a Bloodborne pathogen:

      "Why is the human being not like a machine if it's spewing a virus, blood-borne viruses?"

      Because OSHA has already regulated in that area. I think it's rather telling that she tried to muddy the waters there inaccurately.

      1. Sotomayor is a liberal and Democrat and thus an unprincipled, immoral liar.

        1. And you are just the kind of low-rent, deplorable clinger who will spend the rest of his bitter, disaffected life under the sole of his betters.

          Everybody has problems, clinger. The difference is that your betters have won and get to call all the shots, while you are a loser who gets to whine about vaccination and other shots.

      2. That's not a claim.

        Read better stuff, not this kind of crappy smear.

  9. If SCOTUS implements a stay of the OSHA rule, I really hope the majority opinion goes as far as to cite the Ron Klain "work around". I believe Roberts mentioned it at oral argument.

    https://nypost.com/2021/09/10/ronald-klain-retweets-vaccine-mandate-ultimate-work-around/

    As far as I'm concerned, it was basically a very foolish admission that even the president didn't believe he had the authority, but didn't care, just like the further extension of the CDC eviction moratorium despite clear language from SCOTUS that it was impermissible.

    1. This is by far the best argument against the ETS, but it's not clear to me how it works legally. Assuming the ETS is otherwise valid and well-justified, how do you ignore that and say "yeah but even so, it was all in service to an overall covid strategy and that makes it invalid"? In other words, why is it wrong for the president to encourage agencies to work within their legal authorization towards a common goal?

      1. What do you think they were working around?

        What made it an "ultimate" work-around?

        The idea seems to be that OSHA can mandate anything that is even tangentially related to a hazard that exists while someone is in a workplace. That runs headlong into delegation problems -- the ETS is not "otherwise valid". It is also not "well-justified", in that it covers people based on how many people their employer employs, rather than anything reasonably related to workplace risk.

        1. Uh... the logic of this thread seems too much for you, perhaps you should leave it alone.

          "Assuming the ETS is otherwise valid and well-justified..."

          If it's not valid anyway, the whole "workaround" theory is moot.

          1. No, you just don't realize that your only "argument" is to beg the question.

            1. I'm trying to figure out what planet your brain is on and I think I got it. I think you don't understand the "workaround" theory that we're talking about.

              The theory is that Biden wants a universal vaccine mandate, but there's no federal power that lets him do that, probably not even with Congress's help.

              The "workaround" is to enlist all the various federal agencies to each do as much of a vaccine mandate as each is authorized to do. The idea being, that's a way for the administration to get as close to a universal mandate as it legally can.

              So the question is whether that approach is legitimate in and of itself... _assuming_ each of the agency actions is actually independently valid. Or, are the agency actions tainted by this sort of illegitimate motive of trying to achieve a universal federal mandate.

              So coming in and saying that the agency action is invalid anyway and we're begging the question just means you don't understand what we're even talking about. It's an irrelevant point. It would imply they executed the workaround badly, but it wouldn't say anything about the legitimacy of the workaround itself. In other words, the idea is that they're working around Biden's lack of authority to do a universal mandate, not OSHA's lack of authority to do a workplace mandate.

              I suspect, as I did before, that this is way too much logic for you to hold in your head at once. But I figured I'd give you the benefit of one last doubt.

              1. Your imagination is running away with you.

                The workaround is that the Biden administration intentionally misread the statute to grant power, when that grant was never intended, and is not within the scope of what could be granted. It would be idiotic to call a legitimate exercise of power a workaround, and I don't think Ron Klain is that much of an idiot.

              2. I mean, your argument is that there is no federal power to mandate vaccination, so the workaround is to use the (federal agency) OSHA power to mandate vaccination. I hope you see why that's a terrible basis for defending the "workaround" comment.

                1. I mean, he expressly said otherwise, so why are you saying that's his argument? His argument is that there is no federal power to enforce a general vaccine mandate. That is, neither Congress nor any agency can enact a law/rule saying, "All Americans must be vaccinated."

                  The "workaround" is to enforce more narrowly targeted mandates, that do not impose the requirement on all Americans, but impose it on subsets of Americans that do fall under the jurisdiction of various agencies, and try to reach as many Americans as possible that way. Obviously there's still a threshold question of whether a particular agency does have that authority, but the motive isn't what determines that.

                  1. Right. And the reason we're talking about it at all is that it came up once or twice at oral argument.

                    It is interesting in light of the court's newfound willingness to cancel executive policies that are enacted on pretextual justifications. Does top-down coordination towards a common goal count as an improper pretext? Personally I don't think it should -- administrations are allowed to have overarching policy desires and strategies. But it's arguable, at least to the extent that the charters of the individual agencies get sidelined in the process.

      2. lost among your argument is whether a workplace vaccine mandate covering only employers with more than 100 employees will actually be effective.

        The number of unvaxed in the workplace with employers with over 100 employees who are not already exempted for other reasons is probably less than 3-4% of the total US population. That small of a subpopulation is too small make much if any difference in the trajectory of covid case rates.

        1. Even taking your numbers at face value, 3 or 4% is a lot! That's really high for an OSHA regulation in terms of impact and effectiveness.

          1. Randal you miss the broader point. This is a respiratory virus. A virus which most everyone is going to catch sooner or later. The only viable long term solution is the same solution that has worked for every other prior respiratory virus which is developing natural immunity through the general population. We had high hopes for the vaccine, but it has proven to be vastly less effecient.

            in response to your specific comment - "Even taking your numbers at face value, 3 or 4% is a lot! That's really high for an OSHA regulation in terms of impact and effectiveness."

            Quite frankly that 3-4% that you claim is really high for OSHA is going to have an exceeding trivial impact on the trajectory of covid.

            Basically everyone in support of the Vaccine mandate has a exceedingly unrealistic view that it will make a difference. The analysis needs to be done based on reality instead of a utopian / ultra fear of any risk.

            1. Even if that's all true, it doesn't matter to the OSHA regulation, because "changing the trajectory of covid" isn't one of its (stated) goals. All you're doing is undermining the "workaround" theory that branford's talking about.

              1. A) - That work around theory isnot valid since congress did not give OSHA the statutory authority.
                B) As I pointed out, the vaccine mandate is going to have at most a trivial impact on the trajectory of the covid pandemic for the numerous reasons I have previously outlined and which should be obvious to everyone that has taken the time to have a reality based assessment of the science.
                C) there is a concept in economics called marginal cost / marginal benefit. A lot of time, effort and money is being spent to mitigate the spread of covid in ways that have a very small effect on the reduction of the spread. Whereas , more concentrated efforts are being not being implemented that will have much greater impact.

                for example, vaccinating kids is idiotic since there is very little if any benefit where as 3 & 4 boosters shots for the vunerable will have much greater rewards.

                1. Unless you're coming after Chevron, your B and C aren't your arguments to make.

                2. Joe,
                  as a person with immuno-suppression, I will go for a 4th shot as soon as 4 month have passed from my last shot, whether the FDA approves or not.

                  1. Don - you point out where the time, effort and $ should be targeted - exactly where they will bring the greatest benefit.

                    I completely agree with using effective mitigation protocols.

                    The flip side is tremendous effort is being expended where the marginal benefit is very low. The vaccine mandate is one of those that actual benefit (reduction in transmission) is going to be less, probably significantly less than anticipated benefit.

  10. I remember a time in the not so distant past when Trump was accused of shredding the Construction with his executive orders.

    Wouldn't the Supreme Court with a firm ruling on the Major Questions doctrine help protect us all from Trump, if he or one of his alocytes are elected in 2024?

    1. Some EOs are constitutional, some are not.

      Hope this helps.

  11. people work from home.

    Expect an expansive reading of OSHA regulations to now include your bedroom.

    Coming soon to an agency near you.

    1. NYC already mandates checking vaccination status of babysitters, as home-based employees.

      As employers and employees, parents and babysitters must be masked in the home, as well.

      Liberals do not recognize the sanctity of the home.

      1. No, it does not mandate that.

        Working from home makes you exempt from NYC's vaccination and masking requirements.

        1. Actual question, is a babysitter working at *somebody else's* home "working from home"? Seems counterintuitive, but I don't know how it's written.

          1. That, I can't speak to. I know people in NYC working from home, I don't know any who are or have babysitters.

        2. S_O,
          The feds mandate for its agencies does not exempt those (including its contractors) working from home.

          1. As someone working for one of said agencies, I can tell you it's being implemented to include such an exemption.

            1. Classic government: "Do as I say, not as I do."

  12. You have an error in your transcript. Roberts said "free rein," not "free reign." You're letting the horse choose where to go, not establishing a liberal monarchy.

  13. The approach seems to transmogrify the major questions doctrine from an exception to a special deference rule - Chevron deference - that results in ordinary statutory intrpretation being applied, to a stand-alone special anti-deference rule that trumps ordinary statutory interpretation.

    In this respect, the approach bears analogies to the Alito interpretation of Smith, which worked a similar transmogrification into a stand-alone anti-deference doctrine that results in striking down laws that would have been upheld under pre-Smith compelling interest, on grounds that the existence of exceptions negates compelling interest.

    It seems to be something of a pattern.

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