So lets take a look at what went on in the Supreme Court hearing on Bidens Test and Mask Mandate.
Here are the full transcripts
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/21a244_kifl.pdf
I have excerpted some of it below.
We all know the ETS is a blatant attempt to coerce unvaxxed to get vaccinated to avoid the inconvenience and cost of testing and unpaid periods where they are forced into isolation
After all, there was an Emergency since March 2020. What stopped OSHA from issuing an ETS before the vax became available limited to requiring masks (useless) and testing? . Later it came out briefly that the game changer for OSHA was Delta, but by that time up to 70% of Adults had been vaccinated and up to 40% had immunity from previous infection, so why was that a game changer? Nobody asked.
They could have issued an ETS for testing (or at least temp checks) for all employees when 100% were unvaxxed as opposed to now when 70% are vaxxed and deaths in November and December are only 1/2 what they were in those same months in 2020
The purpose of the ETS is said to be to protect the unvaxxed worker . According to the ETS the only one in Grave Danger is the Unvaxxed who are subject to Test and Mask Mandates.
However, nowhere in this 2 hour discussion of great minds is there a question of why the ETS does not seek to prevent the vaccinated who get COVID from working alongside their masked co-workers. It would seem the ETS permits the Vaxxed to be a Grave Danger to the unvaxxed.
It is very clear that while vaccination may protect against severe disease it does not prevent infection of the vaxxed worker and transmission to vaxxed/unvaxxed workers alike. This was acknowledged in the hearing. Indeed one of the lawyers was on Zoom because he tested positive despite being thrice vaxxed.
So the argument should be the ETS as it stands does not adequately address the Grave Danger to the unvaxxed . To address that the Test and Vax Mandate should apply equally to all workers (vaxxed and unvaxxed) , thereby thwarting its main objective , which is coercing vaccination with a vaccine not very effective to Omicron until the worker gets his 3rd shot
It should also be pointed out that the risk of contracting COVID increases within the first 14 days of the first dose. Not something you want to do when prevalence of the virus is high
Covid rates increase the first 2 weeks after vax
https://www.medrxiv.org/content/10.1101/2021.02.01.21250957v1.full.pdf
There was also no discussion of natural immunity. Why should someone who has documented evidence of a previous infection be treated differently from a vaccinated worker when natural immunity is superior and longer lasting?.
So here we go, read on to see how misinformed and uninformed many of our Supreme Court Justices are
[my comments are bracketed]
MR. KELLER:
ORAL ARGUMENT OF SCOTT A. KELLER
ON BEHALF OF THE APPLICANTS IN NO. 21A244 MR. KELLER:
Mr. Chief Justice, and
may it please the Court:
OSHA's economy-wide one-size-fits-all mandate covering 84 million Americans is not a necessary, indispensable use of OSHA's extraordinary emergency power which this Court has recognized is narrowly circumscribed.
Just three days ago, the. U.S. Postal Service told OSHA that this ETS's requirements are so burdensome for employers that the federal government is now seeking an exemption from its own mandate for the Postal Service.
That's because OSHA's economy-wide mandate would cause permanent worker displacement rippling through our national economy, which is already experiencing labor shortages and fragile supply lines.
OSHA has never before mandated vaccines or widespread testing, much less across all industries. In fact, the June healthcare COVID ETS and the 1991 blood-borne pathogen rule both rejected vaccine mandates and widespread testing, and those were even just for targeting healthcare workers.
And, here, OSHA's vaccine-and-testing mandate treats virtually all industries' workplaces and workers the same. But even Congress's rescue plan identified high-risk workplaces, and OSHA itself here recited state data confirming that certain industries, like healthcare and correction facilities, are higher risk.
Our nation's businesses have distributed and administered hundreds of millions of COVID vaccines to Americans.
Businesses have encouraged and incentivized their employees to get vaccines. But a single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies.
So this Court should immediately stay OSHA's unprecedented ETS before Monday, when OSHA begins enforcement.
Snip
JUSTICE KAGAN: It's an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before.
MR. KELLER: What OSHA needed to do here, though -- and we do not contest that COVID is a grave danger,
[An immediate fumble you Dope. It is not a grave danger to workers 18-64 in good health]
….but when -- a power for it to be necessary, for instance, the Third Circuit said in wielding what is supposed to be a delicately exercised extraordinary power, the agency has to consider and explain alternatives.
The agency here complained that its non-mandatory guidance wasn't being followed and then instead of saying that maybe some of those mandatory guidance -- some of those guidances could have been made mandatory, it jumped immediately to a vaccine-or-testing mandate.
Justice Kagan:
We all know what the best policy is. I mean, by this point, two years later, we know that the best way to prevent spread is for people to get vaccinated....
[with 70% of the work force fully vaccinated it doesn’t appear to be working]
The second best is to wear masks.
[ Sigh, He has been watching too much CNN]
[unfortunately Mr Keller did not challenge these assertions]
Snip
JUSTICE BARRETT: Would you be here making these same arguments if this were just a masking and testing requirement and not the vaccine portion of it?
MR. KELLER: Yes, I think that mandatory testing is still a mandatory medical procedure. OSHA has never, even in a regular rule, done a blanket, widespread testing regime of over 84 million Americans.
JUSTICE BARRETT: What if it was just masking?
MR. KELLER: I think we -- I don't think OSHA has the ability to set by emergency rule nationwide COVID policy. You know, the more that we back out of this and the more we say, well, if it's not an emergency rule or if it's targeted to a particular workplace, you know, I think there can be debates about that.
But, as long as they're trying to set a blanket-wide -- economy-wide policy by an emergency rule, OSHA does not have that power
Snip
Justice Breyer
I mean, there -- there were three-quarters of a million new cases yesterday. New cases. Nearly three-quarters, 700-and-some-odd thousand, okay? That's 10 times as many as when OSHA put this rule in.
The hospitals are today, yesterday, full, almost to the point of the maximum they've ever been in this disease, okay?
And you heard references, studies, I mean, they -- they vary, but some of them say that the hospitalization is 90 percent or maybe 60 percent or maybe 80 percent, but a big percent, filled up yesterday or the day before with people who are not vaccinated, okay?
[Not Ok, where are your facts coming from?. Plus hospitals are full every January, show me they are more full than January 2020-prepandemic]
[BTW, hospitals make about $300,000 per COVID patient and charge up to $1000 for a COVID test the government provides for free]
Justice Alito.
As OSHA has said, the grave danger here is to the unvaccinated worker who is exposed to COVID.
Snip
JUSTICE SOTOMAYOR: There's no requirement here. It's not a vaccine mandate.
Snip
JUSTICE Breyer- But more may quit when they discover they have to work together unvaccinated others because that means they may get the disease. Okay?
[Maybe they are the grave danger. Mass Formation Psychosis. How about an ETS to deal with that?]
And more will quit because they'll be-- maybe die or maybe they'll be in the hospital or maybe they'll be sick and have to stay home for two weeks.
[The Vaccinated might quit because they may die or be in hospital . You mean they DONT WORK?]
ORAL ARGUMENT OF BENJAMIN M. FLOWERS ON BEHALF OF THE APPLICANTS IN NO. 21A247
MR. FLOWERS: Mr. Chief Justice, and may it please the Court:
OSHA typically identifies a workplace danger and then regulates it. But, here, the President decided to regulate a danger and then told OSHA to find a work-related basis for doing so. This resulted in the vaccine mandate, a blunderbuss rule, nationwide in scope, that requires the same thing of all covered employers, regardless of the other steps they've taken to protect employees, regardless of the nature of their workplaces, regardless of their employees' risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate.
So sweeping a rule is not necessary to protect employees from a grave danger as the emergency provision requires. And I want to be clear that states share OSHA's desire to bring this pandemic to a close, but the agency cannot pursue that laudable goal unlawfully.
I welcome your questions.
MR FLOWERS
Finally, the other point in the public interest is that one awkwardness of this situation is that the ETS is focused on what was really a different pandemic. It's all about the Delta variant. Now we are on to Omicron.
[Good Point]
And as my presence here as a triple vaccinated individual by phone suggests and as Justice Sotomayor suggests and as the amicus brief from the American Commitment Foundation shows, vaccines do not appear to be very effective in stopping the spread or transmission.
[ exactly]
They are very effective in stopping severe consequences, and that's why our states strongly urge people to get them. But I think that makes it very hard to look at the numbers they give and assume that they still apply today --
[GOOD JOB THERE]
JUSTICE SOTOMAYOR: -- counsel, those numbers show that Omicron is as deadly and causes as much serious disease in the unvaccinated as Delta did.
[Misinformation]
[Omicron Less serious]
https://www.nature.com/articles/d41586-022-00007-8]
The numbers, look at the hospitalization rates that are going on. We have more affected people in the country today than we had a year ago in January.
[How can that be? We have 70% Adults fully vaxxed while a year ago we had one]
We have hospitals that are almost at full capacity with people severely ill on ventilators.
[This is normal in January]
We have over 100,000 children, which we've never had before, in -- in serious condition and many on ventilators.
[dare I call this Fake News?]
....none of you have addressed that part of the ETS is to say something that should be self-evident to the world but is not, which is, if you're sick, you can't come into work. The workplace can't let you into the workplace and you shouldn't go on unmasked.
[Yet, nothing in the ETS prevents the vaccinated from coming to work sick, and they dont even have to wear a mask if sick]
Snip
JUSTICE THOMAS: Mr. Flowers, there's been some talk -- suggestion or at least it seems to be implied that the vaccinations are efficacious in preventing some degree of infection to others.
Could you talk about that, particularly as I remember in the filings that the 18 to -- that the younger workers, the 20-year-olds who are unvaccinated are actually safer than the older workers who are vaccinated.
FLOWERS: So I want -- first, I want to be very clear. We're -- we are strong promoters of vaccination because they do stop serious illness.
[Why dont you just shoot yourself in the foot so we can watch you dance? They dont stop serious illness they reduce serious illness ]
In terms of stopping infection and transmission, at least with the current variant, it appears the numbers suggest to be far less effective.
[thats better]
But -- but -- and then, in Terms of the comparison you were asking about, I think it's hard to define "grave," what the grave danger in the abstract.
...CDC data from the last week of October, unvaccinated individuals 18 to 29 were as likely to die as vaccinated 50 to 64-year-olds
16 year olds were five times less likely to die than vaccinated 65 and up.
Hospitalization was between 18 and 49, that's not even just the young -- was about as likely as vaccinated 65 and up.
If you look at the Griffin study that they cite at 61,418 of the federal -- of the Federal Register, unvaccinated and vaccinated both had low risks of death and ICU.
As a societal matter, we are not debating that COVID is serious, and it has incredibly grave risk for some people, not for everybody.
[too bad Mr Keller didnt make this distinction]
And, finally, I'd point you to the Scovy Study. Again, they cite that at 61,418 of the Federal Register. It showed that vaccinated individuals who are 65 or older are 7 twice as likely to die as unvaccinated individuals 18 to 49.
Snip
JUSTICE THOMAS: Would the State of Ohio have the -- in your -- I'm not saying this would be an approach you would take, but we -- you had earlier a discussion about whether or not the federal government had police powers in the workforce, and you suggested that the state has those police powers. Could the State of Ohio do what you say OSHA cannot do?
MR. FLOWERS: In terms of -- yes, my position is the State of Ohio at least could mandate vaccinations not only for workers but for all individuals.
[Mr Flowers, whose side are you on?]
JUSTICE ALITO: I want to come back to the question I asked Mr. Keller in light of all that's been said this morning so far about public health, about the value of vaccine to --vaccines to the general public, because I want to make sure I understand precisely what the question is before us.
And what I took from Mr. Keller's answer, which seems to be right, is that the question is whether there is a grave danger for unvaccinated workers, period.
What the Secretary said was "employees who are unvaccinated are in grave danger from SARS COVID virus, but employees who are fully vaccinated are not.
“So the -- the purpose --if this is to be sustained, it has to be on the ground that it presents a grave danger to unvaccinated workers who have chosen to be unvaccinated.
MR. FLOWERS: That is my understanding. And I don't see how there could be another understanding because the emergency provision specifically says that such emergency standard, meaning the precise one at issue, must be necessary to protect employees from the danger at issue. So the broad societal effects are not -- are not at issue.
[Bingo]
JUSTICE ALITO: And protection of vaccinated employees, who may face some danger of contracting the virus, was not the basis for this rule, is that correct?
MR. FLOWERS: Correct. And I would go further and say they cannot rely at all on the risk to vaccinated workers because they concluded -- this is 61,419 of the Federal Register -- that no one who's vaccinated is --is in grave danger.
[So great, the ETS is to protect to unvaccinated workers and nobody else. Period]
Snip
JUSTICE BREYER:I would find it, you know, unbelievable that it could be in the public interest to suddenly stop these vaccinations. And the only answer that was given was a lot of people will quit.
Well, OSHA considered that. My wonderful law clerk has.... at least five or 10 pages where they went into this. And they said, in our view, hmm, yeah, that's right, some people may quit, maybe 3 percent.
But more may quit when they discover they have to work together with unvaccinated others because that means they may get the disease. Okay?
And more will quit because they'll be-- maybe die or maybe they'll be in the hospital or maybe they'll be sick and have to stay home for two weeks.
[this guy has the same thing Biden has, swiss cheese for a brain]
Snip
JUSTICE SOTOMAYOR: Others, unvaccinated people at risk and people who are vaccinated. They may be at a lesser risk, but the grave risk remains to people of all ages and conditions that are unvaccinated.
MR. FLOWERS: Right, but -- but the problem is they've defined numerical probabilities that are equal to be grave in one case and not grave in the other, and that is the definition of irrational.
[No, No, No - you do not concede there is a grave risk to all unvaccinated workers. How many feet do you have. Shoot one more]
In terms of spread, their own ETS says it's unclear the degree to which vaccinations reduce transmission. They appear to have a positive effect, and they appear, at least with Delta and previous variants, to stop contracting it in the first place.
[shoot your 3rd foot clown, thats not true. They may ONLY reduce contacting symptomatic COVID but allow more asymptomatic infections . No transmission studies have been done, why give in to this?]
So, again, if you look at the American Commitment Foundation brief, it's highly doubtful that that -- that the numbers are going to be comparable when it comes to the Omicron variant.
[A bit of a recovery, but not much. Bet your feet hurt, huh]
Snip
JUSTICE GORSUCH: Mr. Flowers, I'd like to return to the question of -- of who decides. And I think we've all kind of come to the point where we all agree that states have -- have a wide police power under our constitutional system that Congress has to regulate consistent with the Commerce Clause and -- and make the major decisions while agencies can do the work that Congress has given them to do but not other kinds of work.
And the major questions doctrine kind of regulates that interaction between Congress and agencies.
So it's not that judges are supposed to decide some question of public health. It's about regulating the rules of the system to ensure that the appropriate party does.
And so the question in my mind really turns a lot on the major questions doctrine in this case. Is this one that has been given to the agencies to decide or one that Congress has to make as a major question under our federal system? And I haven't heard a lot of discussion about that.
The Solicitor General says that the major questions issue only comes into play when a statute's ambiguous, and I'd like to give you an opportunity to explain your view.
MR. FLOWERS: I -- I -- I think you can view the major -- the major question doctrine, the phrase is sometimes used in different contexts, and sometimes it is used as kind of an ambiguity clarifier, an elephants in mouse holes point.
But another way to look at it is something of a constitutional doubt canon where we recognize that although our non-delegation doctrine is not especially robust today, there are limits on the amount of authority that Congress can -- can give away.
And with respect to these major questions that are going to affect people from coast to coast and cost, you know, millions and millions of dollars and potentially many jobs and potentially infect -- affect public health, we would expect Congress -- we would demand Congress to at least speak clearly before we will say an agency can exercise that power and therefore before we're into the non-delegation issue.
[Mr Flowers, why do you understate the cost. Billions of dollars and millions of jobs, not millions and many]
I -- I do want to stress non-delegation. I mean, if they're right about work-related danger, because I understand their rule, it's any danger you could possibly face at work. A grave danger is any danger that could even conceivably result in death, "necessary" means useful, and through a temporary and emergency standard, you can require permanent abatement.
If you put all that together, this is among the broadest and most standardless delegations of authority to an agency in the United States Code.
[you don’t state why Congress can’t delegate if they want to delegate]
JUSTICE KAVANAUGH: Yeah, I want to follow up on Justice Gorsuch's questions, which I think are important, and also Justice Kagan's questions about the policy arguments that are present here, especially in an emergency situation.
So, as I understand it, you're invoking the major questions doctrine and your statutory argument to say that based on the Constitution's separation of powers, Congress must act or the states must act and OSHA lacks!authority under the current statutes to do this.
That's your basic pitch, I think.
MR. FLOWERS: I -- I think so as long as "this" means the vaccine mandate. We're not-- we're not disputing that they can regulate COVID-19 to some degree.
[Jesus man, its not a Vaccine mandate, its a Test and Mask Mandate, cant you get even that straight?]
JUSTICE KAVANAUGH: Okay. Yes, that's what I meant by "this." I want to give you an opportunity to explain the value of insisting on that congressional action for something like this at the federal level in an emergency situation and explain why we shouldn't defer more to the executive or defer to the executive in what has been characterized, I think appropriately, as -- as a crisis or an emergency kind of situation.
What's the value of insisting on that here?
MR. FLOWERS: Well, one -- one value of it is that when there's an emergency, it's especially important that it be a considered, thoughtful process, and legislation is more likely to yield that. And in an emergency, you're more likely to get broad agreement on -- on certain principles that can be enacted through Congress. And, indeed, Congress has taken many steps to ensure that there are to address COVID-19.
[not very convincing Mr Flowers]
Snip
ORAL ARGUMENT OF GEN. ELIZABETH B. PRELOGAR
Mr. Chief Justice, and may it please the Court: COVID-19 is the deadliest pandemic in American history and it poses a particularly acute workplace danger. Workers are getting sick and dying every day because of their exposure to the virus at work.
OSHA had statutory authority to rely on those measures here, which it found would save 6,500 lives and prevent 250,000 hospitalizations in just six months.
[80 million workers covered. There would be 200,000 deaths of all causes over 6 months assuming a 0.5% annual mortality rate. How many of those 6,500 would have died with but not from COVID.
......How many will die or be disabled from the vaccine. According to a top insurance CEO in Q3 alone there were 20,000 excess deaths in the 18-64 age group for non COVID reasons]
JUSTICE THOMAS: General, the --what's the -- the -- the problem you're getting at? Is it the employer not providing -- making!sure that employees are vaccinated or masked, or is it the employees who decline to be vaccinated or masked?
GENERAL PRELOGAR: Well, it's the grave danger to exposure to COVID-19 --at work, Justice Thomas.
Ultimately, what the agency is doing with these standards is requiring that either through a vaccination requirement or through a masking-and-testing policy that unvaccinated workers who stand the highest chance of contracting the virus at work, of infecting others at work, and then, ultimately, if they get -- if they catch COVID at work, of then suffering death possibly or even hospitalization are protected in all of!those circumstances
So I think what this standard does is it regulates employers by requiring them to adopt a policy that will directly target that grave danger.
[ someone might ask how many workers are Unvaxxed and how many Unvaxxed workers work for companies who dont require masks, but some of these justices aren’t too bright]
JUSTICE THOMAS: I -- I understand that. But who is declining to do that? Is it the employer or the employee?
GENERAL PRELOGAR: I think it can be both. There are many employers around the country that have voluntarily imposed these kinds of requirements with their workers in recognition that vaccination is the single most effective way to protect workers in the workplace or that have used masking and testing requirements to the same end, so many employers are doing it, but part of OSHA's function and what Congress charged the agency with doing is to look at those kinds of best practices and impose them through standards to ensure that workers, no matter what specific controls their employers have in place, are maximally protected.
CHIEF JUSTICE ROBERTS: General, you said just a short while ago that this presented
-- COVID presented a grave danger to people in the workplace.
In a few minutes, we'll hear an argument in the CMS case, and it will be that it presents a grave danger in Medicare and Medicaid facilities.
Not here, but in the lower courts, the federal contractor mandate, the argument is going to be it's a grave danger to federal contractors.
Could you give me examples of some federal agencies where you would be willing to say COVID is not a grave danger in their -- in that context?
GENERAL PRELOGAR: Well, Mr. Chief Justice, I haven't, of course, surveyed the landscape of all of the different authorities that federal agencies can invoke. I -- I take the point of the question --
CHIEF JUSTICE ROBERTS: Well, but you represent them on a regular basis here, so you have a pretty general idea of some other examples of federal agencies.
And my point obviously is that I don't think, as more and more mandates, more and more agencies come into place, it's a little hard to accept the idea that this is particularized to this thing, that it's an OSHA regulation, that it's a CMS regulation, that it's a federal contractor regulation.
It seems to me that it's that the government is trying to work across the waterfront and it's just going agency by agency. I mean, this has been referred to, the approach, as a work-around, and I'm wondering what it is you're trying to work around.
GENERAL PRELOGAR: What we're trying to do here and what OSHA did was rely on its express statutory authority to provide -- to provide protection to America's workforce from grave dangers like this one.
So I take the point and don't dispute that COVID-19 is a danger in many contexts and falls within the jurisdiction of other agencies as well, but I think to suggest that because this disease is so prevalent, because it presents such a widespread harm, somehow OSHA has less power to do anything about it with respect to the --
CHIEF JUSTICE ROBERTS: No, it's not so much that OSHA has less power. It's that the idea that this is specific to particular agencies really doesn't hold much water when you're picking them off one by -- one by one.
I think maybe it should be analyzed more broadly as this is, in effect, an effort to cover the waterfront. I'm not saying it's a bad thing.
But I don't know that we should try to find, okay, what specific thing can we find to say, oh, this is covered by OSHA? What specific thing can we find to say that this is covered by the hospitals? What specific thing can we find to say, oh, no, we're doing this because this is a federal contractor
It seems to me that the more and more mandates that pop up in different agencies, it's fair -- I wonder if it's not fair for us to look at the Court as a general exercise of power by the federal government and then ask the questions of, well, why doesn't Congress have a say in this, and why don't the -- why doesn't this be the primary responsibility of the states?
GENERAL PRELOGAR: Congress absolutely has a say in this, and it spoke here. It passed the OSH Act and -- and promulgated 18 Section 655(c) specifically to empower OSHA to take action to protect workers from grave dangers from physically --
CHIEF JUSTICE ROBERTS: When did it --when did it do that?
GENERAL PRELOGAR: The OSH Act was enacted in 1970, I believe. And the agency, as it explained in the preamble to this rule, documented substantial evidence to show why this constitutes a grave danger in the workplace.
GENERAL PRELOGAR: Well, Mr. Chief Justice, the Court obviously has a statute in front of it that it needs to examine. I think that there is no doubt that COVID-19 constitutes a physically hazardous agent within the meaning of this provision.
I think that the immediacy and magnitude of harm here clearly constitutes a grave danger.
Unvaccinated workers stand a 1-in-14 chance of being hospitalized, a 1-in-200 chance of dying.
[Where are they getting this information? Between march 2020 through February 2021 there were 150 million unvaxxed workers. Were 11 million hospitalized? Did 750,000 die.75 % of COVID deaths have been in 65&over. The odds of an unvaxxed worker dying of COVID is less than 1/1000 especially as half of them have natural immunity and Omicron is less deadly]
JUSTICE BREYER: Yeah, but I think the question is this. I mean, it is a rather deep-- in a sense, a deep question. Can you -- or maybe you did. Could the White House, say, issue an order to all federal employees, and what it says is every federal employee in any agency who has authority under a statute, which means all of them, to require those whom they regulate to insist that their employees be vaccinated, do it? Now they can't legally tell you do it. But it's a strong policy. And that's what's happened. Now I don't know the implications of that. I never thought of that. But I think that's what you're being asked, is that -- is that -- and -- and I don't know if you ever thought of it. But, I mean, has that happened?
[Sweet Jesus how is this guy still on the Supreme Court? Its a good question, but asking it shouldn’t be that hard?]
GENERAL PRELOGAR: I think it's incorrect to say that that is what is happening here. This policy clearly --
JUSTICE BREYER: Yeah, but, I mean,has that happened generally? Has that happened? Did somebody issue such an order?
GENERAL PRELOGAR: Justice Breyer, standing before you today, I'm not sure that I can think of a precise historical example of that kind of order.
JUSTICE BREYER: No, no, I mean in this instance. The answer -- your answer, I take it, is no, there is no such order.
GENERAL PRELOGAR: That's right. I mean, certainly, I think that -- that throughout this nation there is --
JUSTICE BREYER: I don't want to put words in your mouth. Don't tell me there isn't such an order if there is.
GENERAL PRELOGAR: No, I'm not aware of any such order.
[Haha, protecting herself “i am not aware”. Of course there was. Perjury if you can prove it]
JUSTICE BREYER: All right. Or something like that, okay. I have one other question, which is because I'm operating between two things. One is the -- the merits, which might be difficult. I don't know. I'm not taking a view on that, but at least they're difficult and could take time.
And the other is the question of a stay. Now, on the question of a stay, I read from research that we've done, but I don't know if it's right, that the argument was -- what about the argument that they've made? One is that, well, if we issue a stay today, tomorrow more people will stay home and things will get worse. See? That was one of their arguments. And the other argument -- well, all right, what about that? That seemed to me to be the main one.
[Good Lord, Save us all]
13 GENERAL PRELOGAR: As I understand the argument, they're concerned about worker attrition with respect to that -- that particular claim.
JUSTICE BREYER: Yeah.
GENERAL PRELOGAR: And the agency gave sustained attention to this very issue. It spanned several pages of the Federal Register.
The agency looked at surveys that attempt to analyze how workers will respond and looked at the real, on-the-ground practical experience of companies that had imposed these kinds of mandates and found that there was substantial compliance levels and that the concern that workers would leave in droves was -- was misplaced.
And then the agency further emphasized they had provided flexibility to employers to adopt a mask-and-test policy instead of a vaccination requirement specifically because the employers are best positioned to understand their workforce and to know which of these options is going to ensure maximum compliance.
JUSTICE BREYER: What about on the merits? I just have one other, which is on the merits. You've heard and you've read the argument on the other side that, look, what OSHA could easily have done or should have done is go through industry by industry or groups of industries by groups of industries and -- and say there's this here and there's that there. Instead, what they did is everybody over a hundred employees, except for, and then they had a few exceptions, working alone, working at home, a religious exemption, you can prove to us that you have some other thing that's just as good. You know, they went that way, across industries instead of one by the other. That's one of their arguments. What would you say to that?
GENERAL PRELOGAR: My response to that is that the Secretary here cited overwhelming scientific and medical evidence that the grave danger exists based on how this virus is transmitted anywhere people gather indoors together.
And that applies to a lot of workplaces, but that just turns on the nature of how this virus is communicable between people. As -- as Justice Kagan noted, often employees have little control over their work environments. They can't control whether they can socially distance, who they come into contact with, what precautions those people are taking, what ventilation systems exist. And, ultimately, OSHA determined that anywhere there is a risk of indoor transmission, there is a grave danger to unvaccinated employees.
Snip
JUSTICE ALITO: I just wanted to ask you a question on this issue of the commencement of enforcement and the issuance of a stay.
This ETS was issued a couple of months ago, isn't that right?
GENERAL PRELOGAR: On November 5. That's correct.
JUSTICE ALITO: Yeah, on November 5.
All right. And it hasn't been enforced during that period. These cases arrived at this Court just a short time ago. They present lots of difficult, complicated issues. We have hundreds of pages of briefing. We're receiving very helpful arguments this morning.
Does the federal government object to our taking a couple of days maybe to think about this, to digest the arguments before people start losing jobs?
GENERAL PRELOGAR: Well, Justice
Alito, if you're asking whether it would be appropriate for the Court to issue a brief administrative stay, certainly, we think that that would be within the Court's prerogative if it -- if it thinks that it's necessary to do that.
Ultimately, for the injunction that they're actually asking for here, the Applicants would have to show an indisputably clear right to relief, which we think they can't satisfy.
JUSTICE ALITO: Well, I -- no, I'm asking about an administrative stay. I won't get into an argument about indisputably clear.
But your argument -- your point is you think it would be appropriate or would not be appropriate if we issued a short administrative stay? Or if we do that, are you going to say, well, they're causing people to die every day?
GENERAL PRELOGAR: We do think that the agency found that there is grave harm every day, and the numbers are stark, thousands of lives --
JUSTICE ALITO: But there was that grave harm during every single day --
GENERAL PRELOGAR: -- hundreds of thousands of hospitalizations over six months.
JUSTICE ALITO: -- but was there not that same grave harm during every single day between the time when this was issued and --and today?
GENERAL PRELOGAR: Well, Mr. Chief Justice, I think that the agency well explained that the employers who are covered by this needed time to come into compliance. The agency announced that it was exercising enforcement discretion because of the confusion that had been created by the Fifth Circuit stay.
Maybe it would be helpful for me to explain exactly what the January 10 deadline means with respect to compliance. The agency has announced that for employers who are acting in good faith, it is not going to enforce any of the provisions of this ETS until January 10.
And what that means as a practical matter is that employers need to be adopting their policies, they need to be ascertaining the vaccination status of their employees, and as of January 10, they need to be requiring masking for any employees who remain unvaccinated.
So it's not as though immediately employee -- employees are going to be quitting their jobs or leaving in response with the worst predictions. On January 10, if this standard remains in effect, then masking will immediately be required, and the testing will kick in on February 9.
JUSTICE BREYER: So if we delay that one day, maybe I'm wrong, and please tell me if I am, but the numbers I read is when they issued this order, there were approximately 70-something thousand new cases every day. And yesterday there were close to 750,000.
So if we delay it a day, and if it were to have effect, then 750,000 more people will have COVID who otherwise, if we didn't delay it, wouldn't have? I mean, I -- I don't doubt the power of the Court to issue a stay.
I'm just saying what are the consequences of that?
And if I'm wrong, you better tell me I'm wrong because I -- I thought that it really did make a difference to people who might get-- you have the numbers. I saw the numbers.
Well, all right, what -- so what --what do you say? Now you say does not --that's really not a problem?
[ this guy is insane. Most companies already have masking, or workers wear them on their own, and he thinks delaying by one day will really cause 750,000 infections that could have been avoided with 1 day of not requiring a few unvaxxed workers to wear masks]
GENERAL PRELOGAR: Justice Breyer, we-- we absolutely agree that this pandemic has been dynamic, that it is constantly evolving and that the current conditions are -- are posing a truly grave danger.
JUSTICE SOTOMAYOR: General, am I to understand from your previous answer that enforcement qua testing doesn't occur until February 9th, correct?
GENERAL PRELOGAR: That's correct, Justice Sotomayor.
JUSTICE SOTOMAYOR: The only thing that would happen in the next few days or -- up to now, everybody should have a plan in place, correct? no stay. that are unvaccinated workers, that's correct.
JUSTICE SOTOMAYOR: That's the only thing that occurs. And so until February 9th when the testing comes into effect, that's when the threat of -- of resignations or expense comes into effect, correct?
GENERAL PRELOGAR: Yes, as Iunderstand the -- what the applicants are arguing here especially --
JUSTICE SOTOMAYOR: There's no -- been So starting tomorrow, the only thing required are masks, correct?
[Have the jabs broken their brains]
JUSTICE SOTOMAYOR: So the need for an administrative stay, if we're talking about a few days, is really small, if -- very small, correct?
GENERAL PRELOGAR: I certainly myself do not think an administrative stay would be warranted here, but I of course defer to the Court on that.
Snip
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.
GENERAL PRELOGAR: There are a lot of elements to that question. I'd like to try to take them in turn.
I -- I -- I think that Congress did specifically contemplate that there would be emergency situations that posed grave dangers to workers throughout America, and it specifically empowered OSHA to take action in response to that.
I understand the -- the suggestion here that the standard is unprecedented but I don't think it would withstand scrutiny. If you look at the various claims that the applicants are making, they -- they first object to the scope of the standard, the number of employers who are covered but OSHA commonly issues nationwide standards that govern all employers throughout the nation with respect to risks that exist throughout the nation. And that describes COVID-19.
There is substantial evidence here to justify the scope of the standard.
And just to -- to close the loop with one final response, which is to focus on the particular mitigation measures. There, too, we think that there is no indication that Congress couldn't have anticipated or intended OSHA to use these types of measures to combat a deadly virus at work.
Immunization is specifically referenced in Section 669(a)(5). It is the single most effective way to target the spread of a deadly virus and to think that Congress would have meant to preclude OSHA from encouraging vaccination, I think, is inconsistent, both with the text of the statute and with the broader history of immunization requirements in this country, which have commonly been imposed.
CHIEF JUSTICE ROBERTS: Thank you, counsel. curious. dispositions matter, but is a vaccine the only way to treat COVID?
GENERAL PRELOGAR: It is certainly the single most effective way to target all of the hazards OSHA identified, both the -- the chances of contracting the virus in the first place, the risk of infecting other workers on the work cite, and with respect to the negative health consequences, that vaccination provides protection on all of those fronts.
[Pfizer has her well trained]
JUSTICE ALITO: On the issue of whether you're trying to squeeze an elephant into a mouse hole and the question of whether this is fundamentally different than from anything that OSHA has ever done before, I want to see if it might be fundamentally different in at least two respects and get your answer to -- to the question.
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.
Isn't this different from anything OSHA has done before in that respect?
GENERAL PRELOGAR: So two responses to that. First, of course there's also a mask-and-test option here, so I think even --
JUSTICE ALITO: Okay --
GENERAL PRELOGAR: -- on that --
So focusing just on vaccination, I think that that's a way to describe it, that it provides protection when you're not at work.
But OSHA was directly targeting and -- and trying to provide the protection at work and I don't think there's any basis in the text of the statute to think this kind of --
JUSTICE ALITO: here's another respect in which it may be different. And I don't want to be misunderstood in making this point because I'm not saying the vaccines are unsafe. The FDA has approved them. It's found that they're safe. It says that the benefits greatly outweigh the risks. I'm not contesting that in any way.I don't want to be misunderstood. I'm sure I will be misunderstood. I just want to emphasize I'm not making that point.
But is it not the case that this --these vaccines and every other vaccine of which I'm aware and many other medications have benefits and they also have risks and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences? Is that not true of these vaccines? And if that is -- is that true?
[Perhaps Justice Alito shoukd be familiar with the Supreme Courts decision in 2011 that upheld Congress law stating that Vaccines were Unavoidably Unsafe ]
GENERAL PRELOGAR: That can be true, but, of course, there is far, far greater risk from being --
JUSTICE ALITO: But there are --
GENERAL PRELOGAR: -- unvaccinated --
JUSTICE ALITO: -- there is -- there
--
GENERAL PRELOGAR: -- by orders of magnitude.
JUSTICE ALITO: Right. There is some risk, do you dispute that?
GENERAL PRELOGAR: There can be a minimal risk with respect to some individuals, but -- but again I would emphasize that I think that there -- there would be no basis to think that these FDA-approved and authorized vaccines are not safe and effective.
[obviously she doesn’t look at the VAERS data]
JUSTICE ALITO: No, I'm --
GENERAL PRELOGAR: They are most certainly --
JUSTICE ALITO: -- not making that point. I tried to make it as clear as I could.
I'm not making that point. I'm not making that point. I'm not making that point.
There is a risk, right? Has any other-- has OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk, on the employee,so that if you have to wear a hard hat on the job, wearing a hard hat has some adverse health consequences?
Can you think of anything else that's like this?
GENERAL PRELOGAR: I can't think of anything else that's precisely like this, but I think to suggest that OSHA is precluded from using the most common, routine, safe, effective, proven strategy to fight an infectious disease at work would be a departure from how this statute should be understood.
[absolutely hilarious. Even the Supreme Court is petrified to question the safety of the vaccine. Could Justice Alito truly be ignorant of the 2011 Supreme Court Decision that upheld Congress decision that Vaccines are Unavoidably Unsafe]
JUSTICE KAGAN: Can I just say, General, that regulators think of risk/risk tradeoffs constantly when they make regulations, that there are constant situations in which there are risk/risk tradeoffs, risks on both sides, but one risk vastly outweigh another risk, and that that comes up throughout regulatory space.
[Examples where regulators imposed risk to the individuals health for the greater good?]
GENERAL PRELOGAR: That's absolutely true. And one of the risks that OSHA was guarding against here was the risk that unvaccinated workers posed to other workers because they are so much more likely to transmit this deadly disease to them.
[Like a broken record. If the vaccines work they should pose no risk to them, only to other unvaccinated workers who have chosen to be unvaccinated due to beliefs or choice]
JUSTICE ALITO: To what type of workers? To other -- to vaccinated workers?
GENERAL PRELOGAR: Yes. The grave danger finding is limited to unvaccinated workers coworkers --who are far more likely to contract that from their workers as well.
JUSTICE ALITO: That's not a concern for us, is it? You can't sustain this on that ground, that this is helpful to the vaccinated workers, because the unvaccinated workers present a risk to them.
GENERAL PRELOGAR: Oh, to be clear, they present a risk to other unvaccinated workers --older --
ALITO: -- all of whom have balanced the risk differently, maybe very foolishly, but they want to balance the risks presented to their health in a different way. And OSHA says, no, you can't do that, and that applies when you're on the job and also when you're not on the job and for the rest of your life because you have to take these vaccines, unless the testing option is viable.
GENERAL PRELOGAR: Well, one small factual correction, if I could, and then a broader legal point, I think it's wrong to say that everyone who's unvaccinated is just assuming the risk. Some people can't get vaccinations for medical reasons. Some people have deeply held religious beliefs and are entitled to religious exemptions. And OSHA is entitled to try to protect those unvaccinated workers, no matter the reason they're unvaccinated.
[Man, she is Good, however its still their choice to uphold their religious conviction, and pray tell what medical conditions qualifies for an exemption that still allows you to be able to still work. Wouldn’t providing an accommodation for the few workers who are medically unable to be vaccinated (eg work from hime, air filters, larger work spaces, better masks)]
Just on the broader legal point, the idea that OSHA is powerless to act to protect workers if they simply want to assume the risk is inconsistent with how the OSH Act has been understood throughout its history.
OSHA frequently requires employers to require that the employees use protective gear --
JUSTICE ALITO: Isn't -- isn't it --
GENERAL PRELOGAR: -- or take precautions if it's not --
JUSTICE ALITO: Isn't it the case that, most of the time, there's this strong reason for saying that it isn't a defense to an OSH Act charge, that the employers assumed the risk voluntarily, that under most circumstances, employers have an incentive to avoid compliance with, to avoid the cost and inconvenience of the regulation, and so we don't want to have -- put the employees under pressure, overt or implied, to -- to waive protection of a -- a regulation, a protective regulation?
But there's no such incentive here.
They're free. The vaccines are free. And to the extent they keep workers healthy and on the job, it's in the interests of the employers to have them vaccinated.
GENERAL PRELOGAR: Well, certainly, the -- the fact that workers in the past have not wanted to use certain protections has not provided a defense to regulations that have been issued under the OSH Act.
JUSTICE SOTOMAYOR: Counsel, if I might just go back to Justice Alito's question, there's no vaccine mandate here, correct?
GENERAL PRELOGAR: That's correct. And that's what I started with, that, of course, any employer can opt for the mask-and-test option instead.
JUSTICE SOTOMAYOR: So, really, the question is between masking and testing and/or vaccine, but no employer is being put at risk greater than they choose to undertake themselves, correct?
GENERAL PRELOGAR: Yes, the -- the employers have a choice to adopt either of those policies. And OSHA estimated that 40 percent of the employers would adopt the mask-and-test policy.
JUSTICE SOTOMAYOR: Number two, with respect to the issue of whether a person has chosen to run the risk by being unvaccinated, you point out that some people can't for a variety of different reasons. But the risk here is not just to the person; it's to everybody else they put at risk, correct?
GENERAL PRELOGAR: That's correct.The grave danger finding was premised on unvaccinated individuals, but OSHA emphasized that ensuring that unvaccinated individuals are not spreading the virus in the workplace will
protect everyone they come into contact with.
JUSTICE SOTOMAYOR: So they may not be a grave danger to other -- other people, but Idon't see why OSHA has to close its eyes to the fact that they place grave risks to unvaccinated and substantial risk to other people, correct?
GENERAL PRELOGAR: That's right, and OSHA specifically emphasized that vaccinated individuals may still be at significant risk. It wasn't ruling out that possibility. Its grave danger finding was focused on all of the ways that -- that the unvaccinated contribute to the spread of this disease.
JUSTICE ALITO: Is the testing alternative viable at the present time in light of the stories that we see about the long lines that are required to be tested?
GENERAL PRELOGAR: The agency gave sustained attention to testing capacity in the preamble to the rule. It looked at existing testing capacity and projected out of what additional capacity would be necessary for employers that choose to adopt the mask-and-test policy and concluded there would be ample testing in order to comply with the rule.
I'm obviously familiar with the -- the news stories you're referencing, and I think that the agency could adjust if that proves to be a problem, but with respect to reviewing this rule, there was certainly a substantial basis for the Secretary to conclude that this is a viable option.
[How quickly can you adjust?. If by Feb 9 the test situation is not resolved millions of workers will be unable to work as they will be locked out of the workplace pending a test]
Snip
JUSTICE GORSUCH: Yes. So my -- my question with respect to the major questions doctrine is this: We accept that it's not our role to decide public health questions,but it is our important job to decide who should decide those questions.
I think we all agree on that. And here our choice on the one hand is a federal agency and on the other hand the Congress of the United States and state governments.
Now, you argue we should not consider the major questions doctrine unless and until we find a statutory ambiguity. I understand that. But let's -- let's say the Court does find such ambiguity. I know you will contest the premise, but let's just work on it.
If -- if there is an ambiguity, why isn't this a major question that, therefore,belongs to the people's representatives of the states and in the halls of Congress, given that the statute at issue here is, as the Chief Justice pointed out, 50 years old, doesn't address this question.
The rule affects, I believe, we're told, 80 million people, and the government reserves the right to extend it to every private business in the country.
Additionally, states have had the responsibility for overseeing vaccination mandates. I rejected a challenge to one just the other day from New Mexico.
Congress had a year to act on the question of vaccine mandates already. As the Chief Justice points out, it appears that the federal government is going agency-by-agency as a work-around to its inability to get Congress to act.
[ why would you reject challenge to a state vaccine mandate?. Does this mean you would uphold a vaccine mandate imposed by Congress? ]
The risks imposed here are not unilateral. There are risks to those who choose not to be vaccinated that they're trying to avoid sometimes, as you discussed with Justice Alito and conceded to him.
Traditionally OSHA has had rules that affect workplace hazards that are unique to the workplace and don't involve hazards that affect individuals 24 hours a day.
So that's kind of the general tick list we have before us. And I would just like you to address, again, the question, assuming the statute's ambiguous, why isn't this a major question that normally under our Constitution would reserve -- be reserved for the people's representatives in the states, in the first instance, and the halls of Congress, in the second?
GENERAL PRELOGAR: So accepting the assumption that there is an ambiguity, which of course we disagree with, as you know, I think that many of the factors you identified are just simply inconsistent with the whole premise of the OSH Act.
So it's true that states have a police power over health and safety. But as this Court recognized in the Gade case, Congress in enacting the OSH Act specifically brought the federal government into the role of protecting the health and safety of America's workers and displacing and preempting state law in that field.
And so I think the idea that simply because the states have that residual police power provides a basis to assume that the OSH Act can't have any application or that there has to be a specific authorization here of each and every type of mitigation measure is just fundamentally inconsistent with Congress's policy as embodied in that Act.
JUSTICE GORSUCH: 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 there are vaccines against many. And -- and we don't need to list them all. But traditionally OSHA has not regulated in this area.
What do we make of that when we're about what qualifies as a major and what doesn't?
GENERAL PRELOGAR: Well, with respect diseases where there are effective vaccines is explained by the fact that COVID-19 is an unprecedented pandemic that has a magnitude and proportion that --
4 JUSTICE GORSUCH: Well, polio --
[Jesus , Polio is mostly a childhood disease , not contagious and was ELIMINATED before OSHA came into being]
I mean, people forget polio. That was a pretty bad, you can call it a pandemic, you can call it an endemic, I don't know what you would call it, but it was a terrible scourge on this country for many years.
We have vaccines against that -- that, but the federal government through OSHA, so far as I know, you can correct me, does not mandate every worker in the country to receive such S vaccine.
We have flu vaccines. Flu kills, I believe, hundreds of thousands of people every year.
[ good grief, it kills at most 50-60K per year, in a real bad year like 57 and 68 it killed over 100k but that was before OSHA]
GENERAL
vaccinations, I think that the simple explanation for why OSHA hasn't had to regulate workplace exposure to that is because virtually all workers are already vaccinated.
With respect to many of those diseases, all of us have -- at one time or another have been subject to compulsory vaccination.
JUSTICE GORSUCH: Is that true with the flu? Do we know that to be true with the flu?
[School and university mandates, nursing homes for elderly]
GENERAL PRELOGAR: The flu is an exception because it's a seasonal illness. And there I think that the explanation for the failure to regulate is that it doesn't present anything approximating the kind of hazard or danger to workers as COVID-19.
[Flu affects young ADULTS more than COVID]
JUSTICE GORSUCH: Are you suggesting that it doesn't pose a grave risk?
GENERAL PRELOGAR: I think that the agency would have to build the record to demonstrate that it would clear that statutory hurdle.
It would depend on the evidence. Certainly if there were another 1918 influenza outbreak like the country experienced before, yes, absolutely, I think OSHA could regulate exposure to influenza in the workplace. That's similar to what's happening -- happening with COVID-19 right now.
JUSTICE KAVANAUGH: I want to follow up on Justice Gorsuch'sand Justice Kagan'squestions with how the major questions doctrine applies and really first zero in on this question of ambiguity.
We've used words like vague, subtle, oblique, cryptic, and ambiguous to describe the kind of language that would trigger the major questions doctrine, if it is a major question.
We haven't only used the word ambiguous. And it seems to me that a question that I would like your help on is applying language that is subtle, cryptic, oblique to a new context hasn't been done before in the last 50 years.
How do we think about a question like that? And in answering that, think about the benzene case, the Brown & Williamson case with tobacco, benzene with cancer, and the UARG case with greenhouse gas emissions.
All three were the agency was applying this broad but arguably cryptic language to a new context. I think that's one way to characterize them.
How do we think about that?
GENERAL PRELOGAR: Well, I think,Justice Kavanaugh, looking at those three cases in particular, that the reason the Court concluded that the language was -- was cryptic or oblique was because it identified other textual or structural reasons that ran counter to the agency's interpretation.
So in the utility air case that you referenced, the Court observed that the asserted regulation would overthrow the entire statutory scheme. The agency conceded that it was never what Congress could have possibly intended. So that was a structural indication that the agency's regulation was impermissible.
With respect to the benzene case, there, too, there was a question about whether there was an entitlement to regulate without any finding of risk, and that was in tension with other statutory provisions, so there was a conflict.
And with the Brown & Williamson case that you mentioned, the Court chronicled a long line of statutes that had directly addressed the issue of regulation of tobacco products and would have been flatly inconsistent with the agency's asserted jurisdiction.
So there's never been a case where the Court has just confronted broad language and said, oh, it seems cryptic or oblique and so it's a major question, and we're not going to give it its plain meaning. In all of those cases there was a -- a -- a textual and structural reason for the Court to conclude that there was something wrong with the agency's claimed authority.
JUSTICE KAVANAUGH: In all three cases there were strong dissents that said the opposite of that, though, that said actually this statutory language is clear and that the Court, you know, Justice Marshall's dissent inBthe benzene case was very powerful that the Court was simply scaling back from the plain language because of its concern about the significance of regulating every workplace in America to take out any risk of cancer
So there were dissents that made that point but the majority seemed nonetheless, to apply the major questions doctrine.
GENERAL PRELOGAR: There were certainly dissents in those cases that thought that the statutory terms could get the agency there. But here I think the critical difference is that the applicants haven't pointed to anything in this statute that approximates the kind of textual or structural problem that has prompted the Court to look at those kinds of consequences before. And it would be their interpretationBthat creates those problems. They would render superfluous Section 669(a)(5)'s specific recognition that immunization requirements can be imposed under the OSH Act itself. By saying that OSHA can't regulate COVID-19 in the workplace, they would give no effect to Congress's appropriation just last year directing OSHA to do just that, and to target that grave danger.
And so in this case we think that all of the textual clues line up on our side, in addition to the plain language of the statute.
[She is good]
JUSTICE BARRETT: General Prelogar, I have two questions, both of which address the status of this rule as an emergency temporary standard. So my first question has to do with the question with which Justice Thomas opened, which is the meaning of "necessary." So, of course, when OSHA passes a rule through its regular regulatory process, it has to go through notice and comment, and that's a way of holding an agency accountable. All affected people have an opportunity to comment, and the agency develops a robust record.
With an ETS, of course, the agency can circumvent that process so that it can act more quickly.
So, for an ETS, we would want that power to be the exception, not the rule. And one contrast that the Applicants point out between OSHA's authority to issue an ETS versus a regular regulation is that for its exercise of power in the normal course, it need onlyNfind that a regulation to be reasonably necessary, but for an ETS, it has to satisfy a necessary standard
Now, you've argued, and I think there's a lot of intuitive appeal to this, that when you're facing an emergency of the magnitude of this pandemic, that this power effectively -- can be used most effectively as a blunt instrument. You know, we don't have time to make industry-by-industry specific kind of calculations because we want to move with speed.
But how do you reconcile that understanding of "necessary" with the broader "reasonably necessary" standard in OSHA's normal regulatory authority?
GENERAL PRELOGAR: So we certainly agree that the Emergency Temporary Standards' reference to "necessary" as contrasted with
"reasonably necessary and appropriate" is a --is a heightened burden and includes a measure of tailoring that necessary with respect to the particular mitigation measures.
But I don't think that that helps the Applicants here because they haven't come forward with any alternative mitigation measures that they think would equally protect the workers that OSHA found were in grave --danger.
21 JUSTICE BARRETT:-- to come forward with that evidence or did OSHA have to consider it and reject it? Because another part of their contention is that OSHA did not adequately explain why this measure, thisBparticular rule and its scope was necessary vis-α-vis or as compared to other possibilities.
GENERAL PRELOGAR: Well, OSHA explained that at length over dozens of pages in the 150-page preamble to the rule. OSHA specifically explained why vaccination as the single most effective way to target all of the ways that the virus threatens workers in the workplace was a necessary measure here.
And it further explained why masking and testing would be essential if workers remain unvaccinated, in order to ensure that, despite their higher risk level of contracting the virus, they couldn't carry it into the workplace and spread it to their coworkers.
So I think the suggestion that this wasn't adequately explained is inconsistent with the -- the arguments they're making.
And as I understand their tailoring arguments -- and this actually touches on the question you asked earlier in the argument --they're really focused on two things, the categories of workers and the -- the particular workplaces. And they haven't suggested that there are other mitigation measures there that OSHA neglected to consider.
They're saying those things should have just been carved out altogether.But that is inconsistent with the Secretary's judgment that all unvaccinated workers face a grave danger and that the risk exists anywhere that employees are gathered indoors together.
And, again, there might be subcategories within those groups that are in graver danger, but I don't think there is any basis on this record to conclude that the agency lacked substantial evidence to draw the lines that it did.
JUSTICE BARRETT: That's helpful. Thank you. My -- my second question is, again, about the status of this rule as an ETS.
So Chief Judge Sutton pointed out in his dissent from the denial of initial en banc that OSHA did not adopt this rule in response to the emergency qua emergency because that had been ongoing since early 2020, but, instead, it responded to new facts on the ground which included the widespread availability of a vaccine, that maybe it was a surprise many people chose to forgo, and the emergence of the Delta variant.
[Great point. 70% of workers are vaccinated and even with Delta deaths are down in November-December compared to 2020, and vaccine efficiency is lower with Delta. So why is there a grave emergency now but not in 2020 before the vaccine
Furthermore Delta is being replaced by Omicron which is less severe and the vaccine efficiency is even lower than with Delta. Indeed Omicron infections of the vaccinated are as great if not more than unvaccinated
And as a result of the higher transmission rate of both Delta and Omicron over 50% of unvaxxed workers are estimated to have natural immunity due to prior exposure.
Why isn’t natural immunity being considered in the ETS]
And Chief Judge Sutton point out that in an extended pandemic, or I don't know if we've moved to an endemic, such as this one, facts will continually change. New variants will emerge. There might be new treatments, new vaccinations. We have boosters now, right?
So now full vaccination might not just be the two jabs; it might include a booster as well. So when does the emergency end?I mean, a lot of this argument has been about Congress's failure to act. Two years from now, do we have any reason to think that COVID will be gone or that new variants might not be emerging?
And when -- when must OSHA actually resort to its regular authority and go through notice and comment and not simply be kind of doing it in this quick way,which doesn't afford people the voice in the process that they are otherwise entitled to?
[Great questions]
GENERAL PRELOGAR: So I think, if could respond to that in a few different ways,
Congress defined when the emergency exists. It labeled this an Emergency Temporary Standard, but it's dictated by the statutory requirements. So there has to be a grave danger from a physically harmful agent or a new hazard, and the measures have to be necessary to protect against that danger.
And we don't think that there is an additional free-floating requirement about emergency status that has to be taken into account.
[Great evasion]
JUSTICE BARRETT: So it could be an emergency two more years from now?
GENERAL PRELOGAR: Well, I certainly take the point that the emergency can be of substantial duration. Of course, this is not a way to -- to bypass notice and comment permanently. Congress further specified that the agency is expected to conduct a rulemaking process over six months, and that's why the agency estimated the lives saved, the hospitalizations prevented over the six-month life of the rule.
23 JUSTICE BARRETT: Sure, but I was envisioning a new rule, right? Like, you know, OSHA might, two years from now, adopt something that's different from this vaccine or mask-and-test mandate. I'm just talking about the limits more generally on OSHA's power under the ETS provision.
GENERAL PRELOGAR: The limits, I think, are the ones written into the statute. And so, if you want to project out two years from now, I think it's entirely possible, of course, that the trajectory of the pandemic will change. I certainly hope so. And in that case, OSHA, I think, would have to, if it wanted to regulate again, cross the high burden of showing a grave danger.
You know, this is a -- an authority itBhas used sparingly in cases of -- of what we think are true emergencies, and I think to suggest based on concern about what might happen in the future that its authority should be constrained or clipped now, when we are inBthe middle of an unprecedented pandemic that is claiming more lives than we've seen in a shorter amount of time, would do a disservice to Congress's anticipation that OSHA might need to act quickly in response to dangers like this.
Rebuttal
MR. KELLER: Two points, Mr. Chief Justice.
First, we need a stay now before enforcement starts. Our members have to submit publicly their plans to how to comply with this regulatory behemoth on Monday. Vaccines would need to occur by February 9. You would need two vaccines to comply. Those vaccines would have to start immediately.
Tracking and recordkeeping cannot happen overnight.
And on tests, you heard my friend, the Solicitor General, mention the media reports that we've all seen about shortages of tests and costs increasing.
Our declarations, Appendix page 345 and 374, confirm that as well.
And that's exactly why workers will quit right away. You don't even have to take our word for it. The federal government, the Postal Service and Amtrak, both say the same things. What OSHA did is they cherry-picked one study about healthcare workers, a very specific industry, and what that worker attrition rate would be. Again, two declaration cites, we have plenty more, but Appendix pages 351 and 374.
And my second point to close on is
about who decides in the public interest. And I would submit that this Court's precedents answer that.
We're not asking this Court to reverse anything. Industrial union 40 years ago in Justice Stevens's controlling opinion says that there was an absence of a clear mandate in the OSH Act, so it's unreasonable to assume that
Congress gave OSHA unprecedented power over American industry and the emergency power is also narrowly circumscribed, yet here OSHA has never before done mandated vaccines or widespread testing much less over all 21 industries or on an emergency basis.
So whether we're talking about the agency's failure to explain, whether we're talking about the statutory terms necessary, whether we're talking about how this has to be tethered to the workplace under the major questions doctrine, under any one of those theories we are likely to succeed on the merits.
And finally, when it comes to the public interest as this Court just recognized a few months ago, it is undisputable that the public has a strong interest in combatting the spread of the COVID-19 delta variant but our system does not permit agencies to act unlawfully, even in pursuit of desirable ends.
We would respectfully request a stay of this unprecedented sweeping ETS before Monday.
[Pretty weak sauce Mr Keller]