NFIB v. Department of Labor

We will hear argument first this morning in Application 21A 244, National Federation of Independent Business versus the Department of Labor, and the consolidated case.

Hey everyone, this is Leon from Fiasco and Prologue Projects.

On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about the ongoing case against OSHA, the Occupational Safety and Health Administration, and its efforts to protect workers from COVID-19.

By a vote of six to three, the Supreme Court is blocking the Biden administration from carrying out the rules imposed by OSHA that would require companies that employ more than 100 workers to make sure that all their employees either get vaccinated for COVID or wear masks and be tested once a week.

The court recently held that while the suit is ongoing, OSHA's emergency requirement cannot go into effect.

The result is that your employer can continue to require you to work alongside your unmasked and unvaccinated colleagues.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have let our rights drift ever further from us, like the decaying orbit of a distant planet from the warmth of its sun.

I am Peter.

I'm here with Michael.

Hey, everybody.

And Rhiannon.

Hello.

Hi, everyone.

Michael, once you told me maybe a metaphor about a decaying orbit.

I didn't know what that was, but I looked it up.

Now we have the science.

There we go.

We're good to go.

Yeah.

Sometimes I do like scientific ones, and then people correct me on Twitter.

They're like, actually, the orbits don't decay per se.

It's funny.

I forgot that I recommended it to you, but when you said that, I was like, ooh, nice.

Like, wow, Peter, that's really sharp.

Peter sounds really smart today.

Before we get started here, we want to give a quick shout out to our listeners.

In December, we did a sort of holiday special where we provided a bunch of organizations that do good work and need money.

And we got pretty consistent feedback from all of those organizations that it resulted in a whole lot more donations than we expected.

So

we want to say thanks to our listeners.

Surprisingly good news coming out of that episode.

It was very cool.

It was very cool to hear.

Yeah, it was awesome.

Thank you.

Yeah, thank you so much.

A little bit of light, a little bit of hope.

We didn't know how anybody would react to that short little random episode.

But yeah, it was great news to hear back that small organizations were getting thousands of dollars unexpectedly.

That's good stuff.

So thanks to everybody.

Yeah.

Yeah.

So today's case is National Federation of Independent Business v.

Department of Labor.

This is a case about vaccine mandates.

Last year, the Biden administration made employer-mandated vaccines and testing a central component of its COVID-19 strategy, most notably issuing an occupational health and safety administration rule.

That's OSHA for short.

In this case, just a few weeks ago, the Supreme Court struck down the Biden administration's employer vaccine mandate, claiming that they were beyond the authority of OSHA.

There's a lot going on here.

There's culture war fireworks.

There's wrangling about the scope of the administrative state.

It's a legal podcaster's dream and nightmare because it has all of the different types of stupid shit

all sort of swirling around one another.

So, Ree, some context here, some background?

Yeah, sure.

Let's jump into this stupid shit.

You know, I'll go ahead and say that this is more nightmare than dream for me.

But, you know, here we are again, another week.

Legal podcasting, baby.

You don't love the law enough.

No, I hate it with every fiber of my being.

Okay, let's talk a little bit about OSHA and how it got created and why.

So we've talked on a few episodes now about the conservative attack on the administrative state.

Most recently, probably in our episode on Michigan, VEPA, where we said that one thing the Roberts Court is addicted to doing is like superimposing its own non-expertise onto the actual expertise of a federal agency that is empowered through congressional legislation to act.

And so this is another example.

In that case, you know, it was environmental protections.

Here, it's workplace safety and COVID-19.

Same mission, disempower the federal government.

So let's talk about OSHA.

Congress enacted the Occupational Safety and Health Act in 1970.

That law created OSHA, the Occupational Safety and Health Administration, which is a division of the Department of Labor.

You know, this is a big federal agency.

What the statute says is that OSHA, the agency, can issue, quote, mandatory occupational safety and health standards applicable to businesses affecting interstate commerce.

So, you know, just take, for example,

you got fire extinguishers at your workplace.

That's because of OSHA, right?

Anything kind of having to do with workplace safety and health standards, those are promulgated federally by OSHA.

I don't know.

I think the Titans of Capitalism would be very safety conscious without the government yoke on their neck, personally.

Yeah.

The places with fire extinguishers would out-compete the places without.

That's right.

Yeah.

There you go.

So, in addition, the OSH Act passed in 1970 mandates that OSHA issue emergency temporary standards if the agency determines that employees are exposed to grave danger from substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger.

So if those two things are true, that employees are exposed to grave danger, either from exposure to substances or a new hazard, and that an emergency standard is necessary to protect employees from such grave danger, then the OSHA statute says that OSHA is required to issue an emergency temporary standard.

So that's exactly what happened here.

The Delta variant of COVID-19 was ripping through the American workforce, and OSHA issued an emergency temporary standard that is at issue here.

At the time this was issued in December, COVID had killed nearly 1 million people in the U.S.

and hospitalized millions more.

And, you know, where are people getting exposed to COVID?

It's in public places.

The transmission, we know, happens person to person, usually indoors.

So, you know, scientifically, OSHA found that employees were being exposed to grave danger from this agent, this virus, and that an emergency standard was necessary to protect employees.

So again, with those two findings, they are required by Congress to issue a standard.

So OSHA obligated employers with at least 100 employees to require that employees either be vaccinated or they could take a weekly COVID-19 test and wear a mask at work.

So the standard encourages vaccination, but it also permits employers to adopt a masking and testing policy instead if they want to do that.

In response, some businesses sued to invalidate the OSHA standard, saying that their employees were going to quit and go to other jobs if they were required to get vaccinated or required to test and mask.

And in the meantime, they asked for a stay so that the standard wouldn't go into effect while the case made its way through the courts.

So that's what's being decided here, just a stay of this OSHA emergency temporary standard.

Right.

And that should be a narrow question in theory, right?

Yes.

It could be a procedural matter about whether OSHA can issue these rules in the form of an emergency temporary standard.

But instead, what the opinion does is really bring into question the scope of OSHA's authority overall.

Yes.

Big picture.

There's a simple and foundational question we should discuss, which is, what's the proper scope of OSHA?

OSHA is a federal agency meant to regulate workplace health and safety nationwide.

The scope is inherently vast, right?

A huge percentage of the population spends a huge percentage of their time at the workplace.

That fact should be the starting point for any analysis of OSHA's regulatory scope.

The reality of life in this country is that almost all of us are compelled to work, and that gives employers a lot of leeway to act negligently or even maliciously towards their employees.

That's why OSHA exists, and it's why OSHA doesn't make much sense as an agency unless its scope is broad.

Exactly.

The question the court poses is whether this vaccination and testing requirement is beyond the scope of that agency.

And the court says that it is, that OSHA does not have this power.

The opinion is per curium, which means it's unsigned, a trend in controversial cases in the Roberts court, and it lays out a few basic arguments.

The primary argument made by the majority is that COVID is not a hazard specific to the workplace.

It's a general hazard that just so happens to be at the workplace.

The court says, quote, although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.

COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.

End quote.

I find it hard to express how stupid this is.

Deeply dumb.

Deeply, deeply.

The argument that COVID is a general hazard and not a workplace hazard is not coherent to me.

They seem to be saying that a hazard needs to be like specific to the workplace in order for OSHA to regulate it.

But that doesn't make any sense.

There are plenty of things that can kill or injure you both inside and outside of the workplace, and very few dangers, if any, that can be said to exist solely inside the workplace, right?

So, what is the difference between a general and a workplace hazard supposed to be?

Like, for example, a fire in the fire extinguishers.

Yes.

Right.

Are fires a general hazard rather than a workplace hazard?

They occur outside of the workplace too.

Absolutely.

There's nothing about them that is specific to the workplace.

Yeah.

Right.

Can OSHA not regulate heavy machinery because the dangers posed by large objects also exist outside of the workplace you can also get crushed out on the street people get crushed uh outside of the workplace from time to time right so it's not a workplace hazard i always say this but this is just like words with the cadence of logic, you know?

Yes.

Like the court needed some sort of distinction to hang their hat on.

And since a distinction that actually makes sense is off the table, this is what we get.

And to that point, a big part of the court's argument here, and this is not an exaggeration, something that does like a lot of heavy lifting for them is to simply italicize the words occupational, employment, and workplace when quoting the statutes creating OSHA.

Just,

oh, in case you didn't notice, it says occupational.

Right.

And everybody's like, I'm supposed to be like, oh, shit.

Oh, goddamn.

Checkmate libs.

They're right, bro.

It says occupational, actually.

Oh, shit.

Unreal.

Unreal.

I really do struggle to think of one

workplace danger that is truly specific to the workplace in the way that they're implying it has to be.

Right.

You just can't really think of anything.

Of course, every danger in a physical space is going to exist elsewhere.

Like, it's just such a bizarre rationale to lead with.

Let's talk a little bit about some of the batshit comparisons the court makes in this opinion.

So, like I just quoted, the court said, COVID-19 canon does spread at home, in schools, during sporting events, and everywhere else that people gather.

First, probably worth noting that those are workplaces too.

Yup.

Right?

Yes.

Right.

Yeah, exactly.

Just goes to show that the court is badly misconstruing the nature and scope of the problem and like absolutely out of their substantive depth here.

And just like classically aloof, you know, like very rich guy sort of thing to think of something like a sporting event and not really process that it's a workplace when you conceptualize it.

The court also says that the risk, quote, is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

So

also things that are heavily regulated, right?

Like OSHA regulates both crime and air pollution in some respects, right?

OSHA regulates workplace violence and airborne contaminants in the workplace and produced by the workplace.

So literally the only examples I could think of are examples of things that OSHA does regulate, which again goes to my point.

I don't think there are any examples that would fit into this framework they've created.

And to add, there are two schools and sporting events.

One, pretty much throughout this country, up until the death cult around COVID, schools have had vaccination requirements for their students for like measles and polio precisely to stop the spread of communicable diseases.

Right.

And two, aside from being a workplace, as Peter mentioned, two, in terms of being specifically an occupational hazard, if you work.

at a sporting event, right?

Like the hazard of COVID-19 is being exposed to sick people.

That's right.

You are being being exposed to a massive, a massive number of people.

The likelihood that you get exposed to someone who's sick at a sporting event is extremely high.

Like it's extremely high.

That is precisely a sort of place where you would want to definitely have this sort of rule.

Right.

And so like, in addition, like as a non-worker, right?

You have a choice, right?

You can go to restaurants or not.

You can go to movies or not.

You can go to sporting events or not.

What you can't do, what you don't have control over is your workplace environment, right?

That's right.

You have to go to, and you don't get to control who you're around there or what they're doing.

So in terms of like something that's specific to employment, yes, being exposed.

to unvaccinated people is very clearly a workplace specific hazard because just about all other exposure in your life is within your control.

It's only the workplace that's out of your control.

Right.

And this goes back again to the purpose of why OSHA was created in the first place by Congress and not just empowered, but mandated, required to act in these situations, right?

It's exactly this understanding that people, when they're at work, do not control those environments.

It's actually in the hands of employers.

And there should be a federal agency, there should be regulations to protect people in environments where they don't control the situation.

They don't control the hazards that they are up against.

Right.

Right.

And so then the court transitions into a second argument very quickly, which is essentially that the vaccination is permanent.

Unlike other regulations, it cannot be undone by the employee at the end of the workday.

In some ways, this is a more interesting argument.

But before we get into it, I want to point out that they have sort of subtly shifted topics here, if you're not paying attention.

Before we were talking about the scope of the occupational hazard that OSHA can regulate.

Now we're suddenly talking about the scope of the remedy that OSHA can provide.

So before it was, can OSHA regulate COVID?

And now it's can OSHA impose vaccination requirements, which should be two separate questions, but the court sort of weaves, you know, bounces from one to the other as if they were the same discussion.

I point this out mostly because it shows that there's no framework or coherence to their analysis.

They're just sort of making a series of points and hoping something sticks.

Yeah, something I was struck by in the opinion, in this majority or per curium opinion, actually technically, is how, and I believe Adam Serwer pointed this out in The Atlantic in a really good piece about how this opinion really belies, how it's all about ideology, right?

And not actually about the statute or about this specific procedural question that the court is supposed to answer.

The conservatives on the court would usually be pointing to the text of a statute, right?

And saying, oh, but the text says this, or the statute is clear or congressional authorization is clear because we have the text, right?

They're not doing that here.

They're having to wax poetic and philosophical, right?

About what is mandated when a vaccination is mandated, right?

Liberal use of italics.

Yes, exactly.

Liberal use of italics.

And they're having a pseudo-philosophical discussion, right?

This decision is not tethered to anything, certainly not the statute that created OSHA and OSHA's mandates, right?

Which are extremely clear.

Yeah.

So I want to talk briefly about this argument.

They're saying that vaccinations are something, you know, that the employee kind of brings home with them, right?

You can't leave it at the workplace.

I at least thought that here they found like a real distinction.

between this and you know your typical OSHA regulations.

Now, I haven't like gone through every possible OSHA regulation.

Maybe there are some that are a little more like this.

But I think there's two things wrong with the argument.

One, like Rhys said, just because you can find a distinction doesn't mean mean that that distinction is dispositive in the analysis.

It doesn't mean just because you find a difference between this and other regulations that this is outside of their power.

It might mean that it's sort of an oddball regulation to some degree, but that's really it.

There's nothing in the law or the regs that would strip OSHA's power to do this.

And second,

a lot of the legwork being done here is by the implication that like taking a vaccine is a huge burden on a person.

And I'm sorry, but I just don't buy that shit.

I just don't buy that shit.

In order to buy the majority's reasoning, you really need to believe that.

That being told and made to get a vaccine is like a significant infringement of your personal autonomy.

Yeah.

And I just really don't in the context of a pandemic like this.

You know, it, I just don't buy that argument.

I think you really need to absorb it, absorb that sort of right-wing cultural milieu to really think that this is compelling.

Yeah, to say this with a straight face.

Yeah, yeah, yeah.

Gorsuch says in his concurrence, the agency seeks to regulate not just what happens inside the workplace, but induce individuals to undertake a medical procedure that affects their lives outside the workplace.

Right.

A medical procedure.

A medical procedure that affects their lives?

No, it doesn't.

Like, what are you talking about?

It prevents you from getting COVID.

Yeah.

It's just what's other effects.

It literally, it might make you feel bad for 24 hours.

Right.

That's it.

Right.

Or like, look, there can be adverse effects that are more serious, almost all of which occur with more frequency in COVID itself, but whatever.

Right.

But it's still like funny to me that conservatives spent a year or two years saying,

Look, this only kills X percentage of people.

Right.

And then you get much, much lower rates of dangerous and harmful outcomes with the vaccine.

And all of a sudden, that low number is enough to start building policy around, right?

How dare you expose me to that level of risk?

Just completely incoherent and disconnected.

Yeah.

Yeah.

Just Fox News bullshit.

I mean, that's all there is to it.

Exactly.

The next argument they make is pretty simple.

They basically say, well, you know, OSHA has never in its history.

passed a measure such as this.

Which, I mean, look, it should go without saying that since OSHA has been created, there has not been a disease that killed 800,000 Americans in less than two years.

Right.

I mean, look, this is, again, it's called an emergency temporary statement.

Right.

Right.

The emergency part indicates some novelty.

Right.

I mean, isn't that the point?

Absolutely.

That's the whole point of them being able to do this.

It's just temporary.

Temporary is built in, right?

It's supposed to be responsive to new and unprecedented hazards, right?

So that can build protections from there.

Yeah.

The court also says, hey, this emergency power has only been used nine times.

And of those nine, six were challenged in court.

And of those six, only one was upheld in full.

So I think what they're trying to say here is that this is a section of the statute that OSHA uses to like abuse its authority.

Right.

But I think the more accurate read is that Congress delegated broad authority to OSHA.

Yes.

Because I've read the statute.

Right.

And it's pretty broad.

Yep.

And conservatives just don't like that.

Exactly.

And so the conservative Supreme Court that's existed for the last 50 years has just been gradually rewriting that provision to make it more and more toothless.

Right.

Right.

Exactly.

That's what they're saying without realizing they're saying it is like, we don't like this law.

And so we have been rewriting it.

Right.

Right.

If OSHA had this power, then why would we continuously interfere with that?

Ever think about that?

That's right.

So the backdrop of all of this analysis is what's come to be known as the major questions doctrine.

The court is generally supposed to defer to federal agencies.

It's what's known as Chevron deference, named after a case from the 80s, where the court held that as long as an agency's regulation is reasonable, the court should be deferring to the agency, just leaving the regulation alone.

Conservatives have long hated this rule because they don't want to defer to administrative agencies.

They want to strip away the power of administrative agencies.

Right.

They would like them to be dismantled.

Right.

Yeah.

So they created the so-called major question doctrine, which says that they will not defer to agencies on matters of, quote, vast economic and political significance, as they put it in the eviction moratorium case last year.

So rather than defer to OSHA's expertise here, they're saying that the court needs to weigh in because this is a matter of vast economic and political significance.

So basically they've created a rule rule where if in their own discretion they believe that something is very important,

they're allowed to step in and tell the agency that they can't do it.

It is an expressly political doctrine that is expressly predicated upon the court's own intuitions about what is or is not important.

You know, we were talking about this before recording.

A few years ago, would anyone have deemed vaccines an issue of vast political and economic significance?

No, not.

No, but people are a little hot about it now.

And so the court's like, yeah, that gives us the power to step in here.

Yeah, the Surrey piece that Rhiannon mentioned earlier cited a bunch of, you know, conservative articles back when the anti-vax movement was a bunch of like liberal hippie-dippy types in Northern California talking about how vaccines and vaccine mandates are like totally you know normal and important

and like the anti-vax movement is like crazy and stupid right but you know the political situation has changed now.

And so.

Yeah, Fox News is singing a different tune now.

So all of a sudden it's a major political issue.

Exactly.

Right.

And you know, keep in mind we're talking about federal agencies.

There's going to be an argument that nearly anything a federal agency does has vast economic and political significance because the jurisdiction of the federal government is the entire country.

Right.

That is.

the main point of the federal government.

So they're just giving themselves free rein to fuck with just about about anything the federal government does that they don't like.

And I think it's worth noting that this is half of the attack on the administrative state.

So with this doctrine, they're saying Congress has to be explicit if it wants to authorize a federal agency to handle a major question.

But then there's what's called the non-delegation doctrine, which is embraced by the Gorsuch concurrence here.

and says that Congress cannot delegate its authority to administrative agencies.

So So you have this twofold approach.

First, Congress has to delegate important issues to agencies in order for the agencies to have that authority.

But then second, maybe Congress can't delegate it to administrative agencies.

Sorry.

And so, you know, if this seems less like a framework of coherent rules and more like a fake framework of incoherent bullshit designed to dismantle the administrative state.

Yeah.

Yeah.

You know, we're on to something.

Yeah.

Yeah.

Yeah.

And another

area where that becomes clear is sort of at the end of the opinion, because again, technically, this isn't a merits decision, right?

This is a question of whether or not like this mandate can go into effect while like this gets a full hearing and full briefing and all that.

Yeah.

And so the

court's standards here, the procedure is first to determine who's likely to win.

when they're saying the administration is likely to lose here.

But then they're supposed to balance the equities, which is to say, well, what's fairest?

What if we're wrong and it goes the other way?

Will somebody be like irreparably harmed if we like proceed under the assumption we're right?

Will things be worse?

What's the safest, best way to do this?

Right.

And the court says, we're not going to do that.

Yeah.

They say, no, thanks.

They like kind of throw up their hands.

First, it says the balance of equities, quote unquote, does not justify allowing the mandate to go into effect.

And then literally two sentences later later says, it is not our role to weigh such trade-offs.

Right.

What the fuck are you talking about?

That's exactly.

You just said it favors your situation.

It is precisely your role to weigh those trade-offs.

And you just said.

Oh my God.

It's so unbelievable.

It's like unreal.

And what it is, is the court like wanting to dabble in vaccine hesitancy, right?

Wanting to question the effectiveness of a vaccine mandate, wanting to raise concerns about the dangers of vaccines without doing that, without saying it explicitly.

So they say, oh, that's not our job, but also

it sort of goes in our favor anyway, right?

Right.

Right.

Yeah, right.

If we were going to balance the equities, we would win, but we don't have to win.

Right.

You can't make me.

That's true.

We can't.

So we should also talk about the Gorsuch concurrence, which, as Peter said, sort of like pulls the veil back on this sort of bullshitty two-step, right, that they're doing.

Which I'm sorry to cut you off, Michael, but is so weird to do for a per curium opinion.

We were talking about this before, too.

Like per curium, the way you're sort of taught in law school, and I think traditionally, you think of a per curium opinion as being an unsigned opinion that is sort of supposed to represent the voice of the court, right?

And usually it sort of follows that that's because it's a unanimous decision.

Right.

And so, like Peter mentioned, it's been kind of a trend for the Roberts Court to use these per curium opinions to issue opinions that are just politically controversial, right?

But then Gorsuch, adding in his concurrence, right, makes it clear that, like, there is more than one voice talking about this.

Right.

And they have different ideas about it.

They have different ideas, not to mention the dissents that we'll get to.

Right.

And so it's very strange that they package this as a per curium when there are concurrences and dissents.

Yeah.

And the first instance I can think of is Bush v.

Gore, where they made a 5-4 opinion per curium.

And then there was also

there.

Yes.

And it's just like, what does per curium mean?

It's supposed to be the unified voice of the court.

So what does that mean if there's dissents and concurrency?

It's just nonsense and maybe shielding individual justices from stress.

Absolutely.

Oh, yeah.

Oh, yeah.

It doesn't either way, it doesn't make any sense.

Yeah.

But so Gore just makes it clear, clear, though, right?

He says, look, the major question doctrines related to the non-delegation doctrine and sort of like what the majority is doing is sort of death by a thousand cuts to the administrative state.

They're not saying Congress can never delegate this sort of authority, but they're just going to bat it down every time an agency tries to assert that sort of authority.

Whereas Gorshich is saying like, yeah, but.

We definitely could and should just

say Congress can't delegate this authority at all.

He like literally says it.

He says, if if the statutory subsection, the agency sites really did endow OSHA with the power to certs, that law would likely constitute an unconstitutional delegation of legislative authority.

So he straight up says it.

That's sort of like the unstated assumption that like anybody who's not like brain dead and understands the conservative movement gets from the majority opinion.

But Gorsuch is like, well.

Just in case, just in case you missed it.

Right.

This is our ideological project.

This is what we're doing.

Yeah, exactly.

And by the way, worth noting that the idea that Congress cannot delegate its authority to administrative agencies doesn't have the strongest academic support.

This was a pretty discredited theory up until a few years ago.

Yeah.

Yeah.

Up until they got six votes on the Supreme Court.

That's exactly right.

Yeah.

I mean, it's discredited.

in a sort of big picture academic sense.

However, it has all the support it needs in a much more specific sense.

But I think still the most significant piece of literature on non-delegation, academic literature on non-delegation in the last few years is called Delegation at the Founding, published by Julian Davis Mortensen.

A pretty thorough debunking of the idea that the founders believed in this doctrine.

Gorsuch doesn't address it at all.

The conservative response academically has been quite tepid, in my opinion.

They don't have any response for this because they don't feel like they need a response.

They're just like, no, this is what we believe.

Yeah, what do they care?

Another point I want to make about the Gorsuch concurrence, and this also applies to the majority, but I think he's just so annoying about this shit.

Really is tedious, right?

Yeah.

They both say that, you know, what they're doing here is making sure that the power to make policy resides with the capital P, the people, right?

Yeah.

And then the president, who is the only politician on the ballot in all 50 states, doesn't answer to the people or doesn't represent the people.

Right, exactly.

But they go further and as evidence for the fact that this isn't the will of the people or the policy of the people, they cite to some Senate resolution disapproving of the vaccine mandate and saying, like, look, clearly Congress wouldn't do this.

And that's why OSHA shouldn't do it, which is so fucking stupid on so many levels.

First, as I mentioned, the people writ large, their representative in the federal government is the president.

Right.

Right.

And OSHA comes under his control.

That's right.

Second, looking at Congress, it's the House of Representatives that's supposed to be answerable to the people.

The Senate is the one that's designed specifically to be indifferent to the majority of the population.

Yeah, it's a voice for fancy boys.

That's right.

It's the House of Lords.

It's esoteric and parochial interests of the individual states, right?

That's what predominates in the Senate.

Exactly.

Yep.

And, you know, just to be thorough, I did the math, and the 52 senators who voted against the vaccine mandate represented 44% of the country.

Well, not the people.

Not the majority of the people.

Like, they're not doing the people's work here in any recognizable sense.

And I guess my final point is like, who gives a shit, though?

Like, this is the point of the administrative state that some things shouldn't be left up to the petty squabbles of Congress year to year.

Right.

And that the expertise of the executive and in times of emergency, the ability of the executive to act quickly and decisively and informed by expertise is really important.

Yes.

And that's why we have emergency temporary standards.

Exactly.

That's why that provision exists is precisely because we don't expect Congress to be able to make these sorts of informed decisions every time there's an emergency.

Exactly.

It's the whole fucking point.

And so this is a facial assault.

on the administrative state, on the very reason it exists on its intellectual and legal foundations, which is a big fucking deal because the administrative state is basically how the country is governed day to day.

Right.

It's the CDC, it's the FDA, it's not just OSHA, it's the EPA, it's everything.

It's why we have clean air when we have clean air and clean water when we have clean water, why you have safe workplaces when you have safe workplaces, all that.

That's the administrative state, and that's what they want to totally kneecap.

And Gorsuch

busts out like the most ridiculous citations.

He cites to an 1819 case, McCulloch v.

Maryland, for the proposition that

where the federal government is of limited and divided powers or some shit.

And he cites to Schechter Poultry, which is a 1935 case that was like an attack on the New Deal.

Yeah.

A very outdated and discredited case.

Yes.

A case that led to the threat of court backing.

Yes.

And then the complete reversal of the political stance of the Supreme Court in the late 30s and 40s.

To cite it is almost to openly embrace the return of the Lochner era.

Yeah.

Absolutely.

Like rhetorically.

To be like, we want Lochner to return.

We want the Gilded Age.

Yes.

It's crazy.

It's the second Gilded Age.

Right.

The removal of the government barrier between employers and employees.

It also has me thinking about like who Gorsuch is writing for, right?

Like the majority opinion, throwing all its bullshit against the wall, feels like it's very much written for just like right-wing reactionaries writ large.

Fox News hosts.

Yeah, exactly.

But this feels to me like it was written for like Fed society freak lost.

Yeah.

Oh, yeah.

You know?

Well, that's the only way he knows how to talk, you know?

That's true.

That's true.

He just might not know any other mode, but that's what it feels like to me.

It's like, it's a different audience.

It's an audience of future right-wing freaks.

Yeah, I think that's absolutely right.

Yeah.

I've got to pee or I'm going to die.

Let's take an ad break then.

Okay, and we're back.

So we should turn to the dissent in this case.

Breyer, Kagan, and Sodomayor all join in one dissent, and the dissent is actually unsigned.

So we don't know who wrote it, but they all are together in writing it.

It reads like, I don't know what you guys think about this, it reads like a Kagan dissent, but, you know, anybody's guess is as good as mine.

Yeah, they could have chopped it up.

It felt more like Kagan than any of the other two broadly.

I think so, too.

Who knows?

Yeah.

So we've said that the percurium opinion does not really contend or deal with the actual statute that is at issue here, the statute that empowers OSHA to do what it does.

So the dissent is really the only place in this opinion you see any serious treatment of the OSHA statute and the temporary standard that is at issue here.

I think a really nice kind of summation of the dissent is in this quote.

The dissenters say, underlying everything else in this dispute is a single simple question.

Who decides how much protection and of what kind American workers need from COVID-19?

An agency with expertise in workplace health and safety acting as Congress and the president authorized, or a court lacking any knowledge of how to safeguard workplaces and insulated from responsibility for any damage it causes.

Yeah, that's a correct point that the court is inadequate to address this question, but that's also how I know it's Kagan.

Yes.

Because she's trying to gotcha them with logic.

Like, you said that you were about judicial restraint.

Right.

Here you are taking an activist stance.

That's right.

That feels very Kagan-y to me.

Yeah.

And they're like, shut up.

We don't give a shit about.

Yeah.

I mean, I do like the line, though, that they're insulated from responsibility.

Especially because they claim that this is about like accountability, right?

Like, oh, this should be with the representatives so that the people know who to blame for or reward.

Exactly.

It's like, that's bullshit.

Like, that's.

Right.

You are the ones acting here and you're doing it without any accountability.

With your little lifetime appointments.

Exactly.

Yeah.

So the dissent hits a lot of good points, I think.

It's pretty pretty short.

The percurium opinion, for that matter, is really short too.

And in the dissent, they make a couple of strong points, I think.

First, they say, which Michael mentioned earlier, the workplace environment is different from other environments.

Quote, individuals have little control and therefore little capacity to mitigate risk, end quote, right?

So just the recognition that when you're at the workplace, yes, there are hazards that you face that you may face at home or in other public spaces, but the workplace is unique in that you do not have control over what hazards you face in a lot of situations.

You can't mitigate the risk like you can at home.

This distinction is so simple.

And, you know, we pointed out before, the dissent points it out, but it really goes to the heart of the mistake the majority is making because the majority is talking about COVID and saying, well, is COVID something unique to the workplace?

And the real question is, what are the unique qualities of a workplace that make the risk of COVID more acute?

Exactly.

Right.

And that's something that the majority or percurium does not really tackle, at least in any compelling or satisfying way at all.

Right.

And, you know, what they further do, in the percurium opinion, is obscuring the choice that's given to employers in this emergency temporary standard.

So remember, up top, we said the emergency temporary standard does encourage employers to adopt a vaccination policy, right?

But it also says that a choice that employers can make is to adopt not a vaccination mandate, but instead a mask and testing mandate for their employees, right?

Instead, the percurium opinion calls this a vaccine mandate multiple times, insisting that it is so and obscuring that there is a important choice given to employers to opt out of a vaccine mandate if they don't want to, right?

Yeah.

And unsaid in the percurium is individual employees can request accommodation.

That's right.

You can request religious or medical accommodation to be exempt from a vaccine requirement.

Yeah, that's right.

That's what I was just about to say.

I think the dissent does explain nicely how, you know, there are multiple instances in this OSHA standard of sort of narrow tailoring.

So it's not just that this is not a vaccine mandate, but also that it's not over broad or over-burdensome on employers or employees.

For example, the standard exempts employees who are at reduced risk of infection because they might already work from home, they might work alone, they might work outdoors.

So, those employees are exempt from the policy.

The standard also makes exceptions based on religious objections or medical necessity.

Those employees are exempt.

And the standard allows for employers to show that their quote: conditions, practices, means, methods, operations, or processes make their workplace equivalently safe and healthful.

So, if there's something that employers are doing to keep people safe, right?

Say some combination of isolation, distancing, right?

Whatever combination that keeps people safe from COVID, then they don't have to do this.

And on top of all of that, the dissent underscores, this standard is temporary.

It only lasts six months.

You know, this is not a forever policy in America now.

That's all the time the microchips need.

Right.

Right.

This is not a forever policy.

Like the percarium opinion, you know, makes it seem that there's like no going back from this, that this is some sort of Orwellian right, control over the workplace.

If you don't like vaccines, you could just have a testing regimen for six months.

That's right.

I also want to talk a little bit about the Biden administration's response to this decision.

Yes.

I found it to be a little pathetic.

They released a statement that said, The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure.

Yeah,

but that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans' health and economy.

Biden is starting a change.org petition.

When the court goes low, we go high.

That's malarkey, bro.

I was going to say, I consider this a broken campaign promise because I was promised no malarkey.

That's right.

And this

court opinion is malarkey.

Yeah.

He's letting it stand.

Right.

I expected more from him.

But it is worth comparing to like like how Trump handled courts repeatedly knocking down the Muslim ban, which is they just kept going back and redrafting it until they got a version tailored to the decisions that the court finally upheld.

Right.

Yeah, that's right.

There's stuff to work with here, right?

They say the opinion says this is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID-19.

And they give one example, researchers who work with COVID-19 virus, whatever, blah, blah, blah.

But they say also,

so so too could OSHA regulate risks associated with working in particularly crowded or cramped environments.

They gave it to you.

This is a sentence that only somebody who's never worked in a normal American workplace would rightly think that that's limiting.

Right.

Think of a normal workplace.

Everything is ornate wood.

You have your own chamber.

Right.

You have a leather chair where you can drink brandy from a snifter.

You have three clerks who work for you.

They actually do all of your work for you.

They're sitting on the floor

polishing your shoes.

Sort of related to this case.

Yeah.

The hot Supreme Court story of the week

is Justice Gorsuch has been notably maskless during recent oral arguments.

And Sotamayor, who sits next to him and also has diabetes, has been participating remotely.

So Nina Totenberg, legal correspondent for NPR, wrote a story where she mentioned that Chief Justice Roberts asked the other justices in some form to mask up, and Gorsuch has obviously declined to do so.

That prompted a joint statement by Gorsuch and Soda Mayor.

Yeah.

Which did not deny the story.

Right.

The joint statement said that Soda Mayor never asked Gorsuch to mask up, which is a weird statement to make because that wasn't what the story said happened.

Nobody said that.

It was said that John Roberts, in some form, asked people to to mask up.

Right.

Right.

And so then Roberts, very shortly after, releases his own statement and says that he did not ask them to mask up.

Nina Totenberg has stood by her reporting, as has NPR.

And they're pointing to the fact that she said he asked them in some form.

And she says she has multiple sources.

Right.

A weird part of this also is that conservative media has latched onto it quite aggressively because, you know, it's classic fake news.

They like this.

Pretty good red meat for them.

They need stuff like this.

Like, remember a couple weeks ago when they were saying Sodomayor misstated the number of children in the hospital from COVID?

They were looking for like ways to punch back on the Supreme Court, right?

Ways to centralize it in their anger.

Yeah.

Yeah, that's right.

When the only logical conclusion from this is that Gorsuch is a fucking asshole, a terrible coworker.

Absolutely.

And very clearly has forced Sodomayor to participate in oral arguments remotely.

Like,

it's very clear.

That's what's so fucking stupid.

I don't understand.

Everyone's focusing on the minutiae of like who told who what about masking and it's like well isn't the obvious point that gorsuch is sitting there unmasked and she's not there at all like isn't that the only thing that matters here exactly and the rest of them are masked like that period and they weren't masking before break right that this is like exactly this is this is a change in behavior for everyone except gorsuch yeah i saw someone on twitter uh some law prof i forget who say something like well the sotomoyor and gorsuch joint statement doesn't refute the reporting about Roberts asking Gorsuch, but it does seem to refute the idea that like Sodomayor is uncomfortable.

And I was like, yeah, but she's participating remotely.

I think that's pretty fucking strong evidence that she's uncomfortable.

Like, what the hell are we talking about?

The reality.

Yeah.

Like,

we can all see what's happening here, right?

Like, it's blatantly obvious.

She has a long-standing thing about not talking shit about colleagues.

And she's said out loud loud that she doesn't like to do it, that like they're not.

Absolutely.

She likes to remain amicable.

So like she's not going to come out like, yeah, dude, I'm hiding in my office because of this dip shit.

I hate Neil's guts.

She's not going to release that statement.

I will tell you what.

I doubt it's what's happening, but the only reason I would back.

Briar, like delaying his retirement, if is because he's like, I know I can leak whatever the fuck I want.

I'm out of here.

Right.

I'm out of here in a month or two, but I'm hanging out and I am leaking the shit out of these guys.

Briar tapes.

I doubt that's what it is.

I'm sure it's clerks, but I'd like to believe that maybe he's seeing the end of his tenure there and is like, fuck these guys.

I hear that.

I hear that.

Yeah.

Who do we think the sources are?

That's what I'm always

interested in.

It's got to be clerks, right?

Got to be clerks.

Got to be clerks.

They're all listening to 5-4 and they don't give a shit anymore about the integrity of the court.

Well, DM us for once.

Yeah, hit us up.

We will keep confidentiality or whatever, like journalists do.

The main lesson for me from all this is that the Supreme Court is just like not ready for political scrutiny of any type, right?

Like if you can't handle some gossip about masks, how are you going to handle press coverage about Roe v.

Wade when you overturn it or when Ginny Thomas murders Jill Biden with a military issue assault rifle?

You know?

Do you guys think Breyer is going to retire soon?

There's that report.

on lawyers' guns and money.

One reporter has a pair,

I guess more of a blogger, right?

Said he has has a reliable source saying that Breyer is planning to retire.

And I have to say, usually I would brush that off, but it sort of makes sense because I feel like this term has probably been a little bit miserable.

Yeah.

For Breyer, yeah.

It broke him a little bit.

Yeah.

And I wouldn't be surprised if he was like, all right, that was enough.

Yeah, enough is enough.

Yeah.

And it's like, it's a blogger, but I'm pretty sure he's a law profit, right?

It's Paul Campos.

And so he's like pretty well established in like legal academia.

And he said his source is someone who's close to Breyer, which would not be surprising if he's one or two degrees of separation away from a Supreme Court justice.

Sure.

Although Breyer thinks he's talking to his cat, but he's talking to this guy.

Yeah.

Okay, okay, okay.

Let's get back to the opinion.

And what I want to talk about, what Biden could be doing with it if they had, you know, the balls.

Because again, the standard that the court says that OSHA could regulate is workplaces that are crowded or cramped.

And that gives you a lot to work with.

Like, if I were doing this, my first stop, the first places I would rewrite the regulation would be schools and sporting events.

Yep.

Exactly.

Got them.

And I don't make this point because I'm some public health expert or whatever, right?

Or even some political expert.

I make this point because we're talking about the Supreme Court usurping the power of the executive branch.

Right.

And that there needs to be be an answer.

Yeah.

And there's only one

party that's freely in position to answer that.

And that's the executive branch.

That's President Biden.

That's his administration.

And, you know, and they just don't seem up for the fight.

Right.

They don't want the fight.

Yeah.

Yeah.

Very disappointing.

They don't even seem to understand the stakes.

Trump is such a great contrast because with the Muslim ban, it was struck down repeatedly.

And he just kept refining it and bringing it back in slightly more acceptable form every time.

And here you have Biden immediately making an appeal to employers.

I mean, have a couple fucking meetings to decide whether you want to try another approach before you surrender.

Right, exactly.

He did this last year too with the eviction moratorium, where he sort of announced defeat, and then they tried to reissue an eviction moratorium.

And they undermined their own position by sort of admitting, sort of ceding ground to the court right off the bat.

Trump never did that, you know, even when he was winning almost every fucking case.

Then he was talking shit about the rare ones that he lost.

And that works on conservatives because they have weird dads who are stupid, and Trump fills that father figure role.

And they want to appeal to him.

They want him to like them.

They want their weird, stupid dad to like them.

The other thing is that Trump was doing this in the service of a very unpopular policy, whereas like the vaccine mandate pulls well.

And there have been at least anecdotal reports of employers not having any employment problems because people want to work at places right that have like strong safety protocols in place so if you have vaccine mandates in place people want to work there they're like okay i'm not going to get covid at the office exactly it's the opposite of what like the employers are arguing here that they're going to have to fire or lose a bunch of people or blah blah blah right right they are capitulating on a popular and important and according to them very beneficial public policy.

Right.

It's just such a grave misunderstanding of the political moment, it seems, from the Biden administration.

Yeah.

Yeah.

Well, they're gearing up emotionally to lose on voting rights.

So they don't have the time for this.

Yeah, there you go.

And to get their asses handed to them in midterms.

They don't have the emotional capacity right now.

You're right.

Yeah, yeah, yeah.

Sorry, Supreme Court.

I'm at emotional capacity right now.

To wrap up, this case feels unique because you can see the coalescence of of old and new reactionary thought.

Yes, the conservatives want to dismantle the administrative state.

Tale as old as time, but you're seeing it come up in the context of these more modern reactionary impulses.

And, you know, I know we've said this before, but it's important to understand that the conservative justices on the Supreme Court are not like of a separate intellectual class from the Republican base.

They are reactionary schmucks, brain poisoned by Fox and an endless stream of Facebook memes or whatever.

They've just become very talented at talking fancy.

A lot of modern conservative discourse starts off as like brain-dead conspiracy bullshit and then gets steadily laundered by talk radio and TV talking heads.

Then some more serious op-ed writers and conservative think tanks refine it some more.

And then eventually it might be wielded by the Supreme Court.

And by the time they're done with it, Anthony Fauci is a literal demon from hell and Joe Biden is planting microchips in all of us along with Bill Gates has transformed into something much more reasonable.

Like vaccines are a very serious medical procedure and the federal government shouldn't be able to make employers require them.

But the base impulse from which those sentiments stem is the same one.

And it's a lesson in what the court's role in the government to come is going to be.

Because if you believe that the court is a collection of serious jurists who will place constraints on the rising fascist culture war crusaders on the right, you're misunderstanding what the court is built to do.

This court and the conservative legal movement broadly is a laundering service for right-wing bullshit.

And you will never understand this sort of jurisprudence if you don't accept that first.

That's right.

Next week, a special premium episode on the Ninth Amendment, which is, I think, the coolest amendment.

And it says, just because we're laying out some rights in the rest of this Constitution, doesn't mean you don't have other rights.

You still have other rights.

And as a result, conservatives have pretty much ignored this amendment for 200 years.

That's right.

So we want to talk about a world where maybe you don't ignore it, but maybe read it and think about what it means.

Because again, it is the coolest amendment.

It's a good one.

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Bye.

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5-4 is presented by Prologue Projects.

This episode was produced by Rachel Ward with editorial support from Leon Napok and Andrew Parsons.

Our production manager is Percia Verlin.

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I think we probably generated tens of thousands of dollars of donations.

Hell yeah.

Yeah.

I wonder how Al-Qaeda on the Indian subcontinent.

At least a Google search spike, right?

Like something.