Live BLOG: The Supreme Court OSHA mandate-or-test oral arguments are not going well

https://www.c-span.org/video/?516920-1/justices-hear-case-vaccine-test-mandate

The beginning of the proceeding was muted on C-SPAN.  I am confused re whether  the Solicitor-General of Louisiana presented?  An attorney for the National Federation of Independent Business, Mr. Keller, presented first.

The Justices are very verbal about the fact that a terrible epidemic is occurring with 750,000 new cases daily.  They have also postulated that the vaccination program is the most effective way to deal with the epidemic.

Mr. Keller, arguing against the mandate, has not challenged the efficacy of the vaccine against the Omicron COVID variant.  His main argument is separation of powers, and I don't think he has made it well.

It is sad that the arguments have been constrained within the assumption that the vaccines are safe and effective. 

10:39 am 

Justice Barrett asks whether the scope is too broad (is she leading the attorney?)

She asks what if the rule just required masking?  He says no nationwide rule can be imposed by OSHA.

10:40 am  The Ohio Solicitor General Mr. Flowers enters the argument.  He identifies a problem that the danger is not solely a workplace danger but is a general danger. 

The Justices (all vaccinated and boosted) seem to have received no challenge to the utter uselessness of the vaccine under current conditions, and they certainly have not taken into account that there might even be negative efficacy of vaccinations.

The tone of the Justices' speech indicates they are shocked and dismayed that anyone would challenge these vaccine mandates.

At 10:51. the S-G finally says the vaccines are not as effective against omicron.  Justice Sotomayor (a type 1 diabetic) is exasperated by this talk and interrupts him to say that Omicron is just as bad as Delta, the cases and hospitalizations are higher than ever, and on and on.  She challenges him on the rights of state vs federal government to do this.

Justice Thomas asks about efficacy! at 10:55.  The S-G prefaces his remarks with the claim that "we are strong supporters of vaccination."  He then uses old, non Omicron data, and says, "We are not debating that COVID isn't serious." 

Justice Kagan get a little touchy about unvaccinated people being able to spread infection.

We never did hear anything meaningful about safety or efficacy.

Now the DOJ Solicitor-General Elizabeth Prelogar is reading her brief.

Justice Roberts expresses his opinion of overreach, and challenges her on why it is an agency problem rather than a Congressional problem, etc.

Breyer asks her about the over-broad issue.  She says workers cannot control their work environment, and wherever there is a risk there is a problem.

The rule was issued November 5.  Does the USG mind if they take a few days' delay to consider the issues?  The rule was not imposed over the past two months.

Justice Breyer seems to think that if there is no stay it will stop 750,000 people from getting COVID each day.  Hello?  

Sotomayor says that masks for the unvaccinated start tomorrow, and February 9 is the start of testing.

Kagan asks about whether Congress should act in a very granular way to address distinct hazards in each workplace...but we should not violate the Constitution. 

Roberts points out that Congress has not acted--simply by establishing OSHA 50 years ago, it did not anticipate COVID nor did it give free rein to agencies to enact such broad regulation that was unfamiliar to Congress in 1970.

S-G Prelogar says the vaccines are very safe, and indicates benefits exceed risks "by an order of magnitude"--this is clearly untrue. Kagan throws in a comment about routine balancing of risks.

Alito challenges her, gets her to say that the unvaccinated workers pose a risk to other unvaccinated workers.  Then she points out that OSHA wants to protect people who have a religious or medical reason to not be vaccinated.  This implies the USG is not immediately planning to challenge these exemptions.

Now Kagan says "There is no vaccine mandate here." Employers can adopt the mask and test policy instead. And later she insists that "the agency action falls clearly within the scope of delegated authority."

Gorsuch points out that the Government reserves the right to extend the OSHA requirement to all private businesses. Traditionally OSHA considered risks unique to workplaces.  Why shouldn't the states or Congress be responsible for this issue?

He asks, "What do we make of the fact that OSHA has not regulated in this area (vaccine mandates) before?  What about polio?  Flu?  OSHA has never purported to regulate them.  Elizabeth Prelogar says we are all vaccinated for these.  Prelogar minimizes the risk of flu, and is corrected regarding that fact that many people are unvaccinated for flu.  At 12:11 the arguments ended.