Advisory Opinions - Future of Biden's Vaccine Mandate

Episode Date: September 13, 2021

In today’s episode, Sarah and David give you everything you need to combat half-baked hot takes about the Biden administration’s vaccine mandate as they discuss whether the Occupational Safety and Health Administration (OSHA) has the statutory authority to issue its rule. They then indulge in an exploration of the Commerce Clause. Lastly, our hosts discuss new legal updates to the abortion heartbeat law, as well as some potpourri. Show Notes: -President Biden’s executive order requiring COVID-19 vaccination for federal employees -Explanation of Biden’s EO in The Morning Dispatch -Jacobson v. Massachusetts establishing the government’s right to compulsory vaccination -United States of America v. Texas on Texas’ abortion statute -The opinion from the U.S. Court of Appeals for the 6th Circuit on Tennessee’s heartbeat abortion ban -Asbestos Information Ass'n v. OSHA case -Congressional Research service paper on OSHA -Justice Breyer interview transcript with Chris Wallace Learn more about your ad choices. Visit megaphone.fm/adchoices

Listen closely. That's not just paint rolling on a wall. It's artistry. A master painter carefully applying Benjamin Moore Regal Select Eggshell with deftly executed strokes. The roller lightly cradled in his hands, applying just the right amount of paint. It's like hearing poetry in motion. Benjamin Moore, see the love. Welcome to the Advisory Opinions Podcast.

And I've got to say, Sarah, I have been looking forward to today for several days. I mean, after Twitter exploded with the Biden vaccine and or the vaccine or testing mandate on Thursday, I was almost like, do we call for the emergency pod? Do we do that? Nah, nah, we make everybody wait. We just make everybody wait. For sure. So we're going to talk Biden mandate. We also have a Department of Justice lawsuit filed against Texas over the Texas abortion statute. We have another circuit court, just a judge of the Circuit Court of Appeals. Work in the refs, Sarah. Work in the refs. Breyer, Justice Breyer interview. And you've got some more potpourri.

Yeah. So, wow, this is a lot. So let's, as you say in the Dispatch podcast, dive right in. Okay. The Biden OSHA mandate. Let's explain this for just a second. Okay, the Biden-OSHA mandate. Let's explain this for just a second, and then we will walk through our assessment of the legality.

We'll just kind of take this step by step by step by step. There was a lot of sort of, this might surprise people, there was a little bit of misinformation early on that this was an executive order. Nope, not an executive order. That this was just a vaccine mandate. It appears that it will ultimately be either get a vaccine or weekly testing. But here's the basic background of what he's proposing, and we'll see the details, of course, when the actual emergency temporary standard is promulgated. One, Biden is not proposing that Congress pass a new law. That's going to be important as we discuss this. this. He's proposing that the Occupational Safety and Health Administration, a regulatory entity created by the Occupational Safety and Health Act, pass what's called an emergency temporary standard

for employers in its jurisdiction that they will require COVID vaccines and or weekly testing in the absence of the vaccine. So all of that is really, really important for understanding the legal analysis here. Okay, so let's just sort of do this in a very systematic way. We'll go sort of step one, do you have a constitutional right not to take a vaccine? In other words, does the idea of a vaccine mandate offend the Constitution? Step two, does the federal government have the authority under the Commerce Clause to even begin to regulate this? Step three, does OSHA have the power to regulate this if Congress has authority under the Commerce Clause and if OSHA works?

And step four, does the ETS, the emergency temporary standard, pass legal mustard? Oh, that's a lot. OK, Sarah, let's go. Number one, Sarah Isger. Is it does it inherently offend the Constitution to mandate vaccines in a pandemic? Maybe it should. But since 1905, it has not. That's the Jacobson v. Massachusetts case that we've talked about before. It is spot on on that very narrow question. Can a government mandate vaccines? The answer is yes. Yeah. That part is really probably the, it's the most controversial

concept for people. It is the least controversial legal principle. Because this actually goes back to something that we discussed at length in early 2020. So if you're a brand new advisory opinions listener, in early 2020, we had lots of podcasts over the incredible power that state and local governments exercise to prevent infectious diseases from spreading in the public. And this goes all the way back to the founding of the country. It goes back to before the founding of the country. This is one of the classic reasons for the existence of government is the ability to protect public health. And state and local governments have what is called the police power.

They have a certain inherent authority that extends across sort of the length and breadth of our lives, unless it's explicitly limited by the state constitution or the federal constitution. And there is a lot of power. This is where the lockdowns came from. This is where masking rules came from. There's a lot of power that the state has to order vaccination, especially in a pandemic. to order vaccination, especially in a pandemic. So that, the thing I think that was most controversial publicly is the least controversial legally. Okay, Sarah, question number two for you. All right.

If the federal government doesn't have the general police power to order vaccinations, which it doesn't, and if in the same way that it didn't have the general police power to do nationwide masking mandates or nationwide business lockdowns, what would be the source of the Biden order? What would be the constitutional source of power of Biden's order to businesses to mandate vaccines or weekly tests? This would be the Interstate Commerce Clause, the idea that the federal government can do things to regulate stuff that affects interstate commerce. And we could spend five podcasts from this point on just talking about Commerce C clause jurisprudence. But let's

do like sort of the high level overview. So the commerce clause was kind of this like nothing burger of a clause for, you know, 100 plus years. And then you get to that FDR time where all of a sudden the federal government is rapidly expanding. Really, though, because of that post-Civil War realignment between what the state governments were to the federal government. You know, post-Civil War, it was like, okay, well, now the federal government, the Supremacy Clause really means something now.

And it totally realigned the relationship between the states and the federal government. But it still takes another 70-ish years before that really matters, especially in just the post-Reconstruction era. The presidency was still quite weak. Congress still had a ton of power. And then the Great Depression happens. And all of a sudden, those federal powers become maybe really fun to take out for a spin, like that shiny convertible you've had in your garage because it's just so pretty. You don't want to drive it. And then FDR was like, no, I'll drive it. So you have this case.

Oh, did he drive it? He drove it. Wickard, right? Wickard is the famous case. This is a single guy who's growing wheat on his property, but that wheat is going to go into all the wheat that the country produces. Wheat is fungible to some extent. And the question was, could Congress regulate Mr. Wickard's wheat? And the Supreme Court said yes, massively, not just expanding what the Commerce Clause meant. Nobody even really had ever thought much about the commerce clause. And all of a sudden, it's now the go-to power from Congress from that point forward. Now, the commerce clause expands and expands and expands into the 90s. And then it has this six-year period where it contracts a little. And they're like, look, not everything is the Commerce Clause.

So for instance, gun-free school zones, sorry, that does not affect interstate commerce. Part of the Violence Against Women Act, nope, doesn't affect interstate commerce. And then the 2000s hit and we were like, JK, that was a weird experiment. Let's go back to having the commerce clause expand again, including, by the way, David's favorite case, but a guy growing marijuana on his own property for his own use, not selling it across state lines. And they were like, it's close enough to interstate commerce. I mean, it's not in any way interstate commerce, but like it could be because otherwise

he'd have to buy his marijuana from interstate commerce. So that takes us all to now. That's like my very, very rough overview of the Commerce Clause. The point being, anything Congress wants to do, they're going to go to the Commerce Clause first. And this is certainly that. Now, the question becomes, post Affordable Care Act, David. Right. You can, you know, I will do anything for the Commerce Clause, but I won't do this.

Is there a new Commerce Clause limit? And does this fit? Is this more similar to the Affordable Care Act and a buying insurance mandate? As in you use the Commerce Clause to force people into commerce? Or is it more similar to, you know, the 99.99% of other commerce clause things? Now, remember, just to back up one more time, in 2012, when the Supreme Court upheld

the Affordable Care Act, they did not uphold it on the commerce clause. Chief Justice upheld it on the taxing power. And it was a big deal that he didn't uphold it and said, in fact, it cannot be upheld through the commerce clause. It violates the commerce clause. That's why everyone ran out and said, aha, they strike down Obamacare and all the chyrons on TV got it wrong. And then he got to reading his opinion and said, however, and they were all like, what, huh? However, oh, so, um, if the Affordable Care Act violated the Commerce Clause,

could the vaccine mandate violate the Commerce Clause? David, at least one smart person says yes, that he believes it would violate the Commerce Clause. I'm not there. What do you think? I'm not there either. I think there's a substantial difference between requiring someone, using the commerce clause to require someone to enter into commerce and using the commerce clause to regulate health and safety in the midst of a pandemic that crushed all commerce. Well, not all commerce, but had a massive, measurable, and continues to have an immense, measurable impact on American commerce.

For example, we just saw a miss again, another miss on the jobs report that a lot of people are saying is due to the Delta variant, that the Delta variant and the explosion of the Delta variant, especially in the South and other parts of the Midwest, resulted in depressed American commerce. Also, there's this fact that we have long permitted the federal government to regulate, quote, the occupational safety and health standards. We have enacted a regulatory agency that is empowered to take, quote, reasonably necessary or appropriate steps that are reasonably necessary or appropriate to provide safe or healthful employment or places of employment. So for a very long time, there is a record here for a very long time in this country of permitting the government to intervene and establish health and safety regulations in the workplace under the Commerce Clause. This is something that's happened for years and years and years. And so that, you know, when you look at it from that standpoint, do we have a record? Do we have a legal record of large scale government intrusion into private safety and health standards in employment? Yes, we do. We even have a record during the coronavirus outbreak where OSHA, and this is what we're going to get to next, where OSHA has implemented emergency temporary standards related to COVID-19 short of this vaccine mandate. Okay. So I tend to be,

let me put it like this. I think the smart people who say this will not survive Commerce Clause review are making this assessment, Sarah. And tell me if you disagree with me. I think they are not necessarily saying existing precedent, under existing precedent, this mandate violates the Commerce Clause. What they're saying is, we think that the ACA decision, combined with judicial appointments since the ACA decision,

signaled that this court will depart from some of that prior precedent. And what we're saying is this court would not uphold the standard under the Commerce Clause and that ACA was more of a directional indicator than a trump card. That's how I interpret it. Because I think under the Commerce Clause jurisprudence as it exists, yes, Congress could go in or the federal government under the Commerce Clause could require vaccine mandates to protect health and safety of workers and businesses of a particular size under existing precedent. The question is, did ACA signal a trend where this current court will go? That's my thought. That has to be right because, look, so first of all, quick note, apologies to former Secretary of Agriculture Claude R. Wickard. You were not the farmer. Roscoe Filburn was the farmer. My bad. Apologies

to everyone involved and all of their heirs. Okay. It's really hard sometimes to know who's top side and who's bottom side. And by the way, that sounds funny when I say it out loud to a lay audience, but that actually is what it's called in appellate practice. Are you the top side brief or the bottom side brief? Anyway, sometimes it's hard to know by the time you get to the Supreme Court, who's top side and who's bottom side, because it matters who won at the lower court and then who is the appellate. Anyway, back to business. So look, let me give one other argument in favor of the maybe the Commerce commerce clause is going, is not going to stretch this far.

So far, what the Biden administration has told us is that this will be based on the size of the company. They have not said that it's going to have some, like if you have a hundred employees and engage in interstate commerce, I will bet you dollars to donuts. That's what the actual regulation says. But technically, all we know about it right now is it's based on the size of your company. And so in theory, you could have a company with 101 employees. All you do

is, I don't know, something that definitely is not interstate commerce whatsoever. I don't know, something that definitely is not interstate commerce whatsoever. And maybe, maybe they would say that therefore, if it's only based on size of company, it's both over and under inclusive of interstate commerce. The problem is that race case, the medical marijuana case where the guy is growing his own marijuana, not for interstate commerce. And they said, yeah, but when you grow your own marijuana and don't buy it from interstate commerce, you're still affecting interstate commerce. I don't see how you could ever strike down this under that commerce clause without overturning race pretty explicitly.

Now, is race a case in need of overturning? You bet it is. It's a dumb, dumb case that pretty much nobody on any side of the aisle likes. It's a baby only Justice Scalia could love. Yeah. Yeah. What I was going to say is there's a kind of a theme here once we sort of get through all of this is that when we finish the analysis i would say this is the dream case for the fedsoc nerd who has been arguing for years that the administrative state has been allowed to get out of control through a uh an well shall we say at a excessively deferential reading of the Commerce Clause and essential revocation of the non-delegation doctrine. But we're going to get to that. We're going to get to that. I think we're there. Look, I don't see this failing under the Commerce Clause in part

because of all the other things we're going to talk about. There's like a constitutional avoidance doctrine, the idea that if the court, if there's some other problem with a legal action, they're going to strike it down on those grounds and avoid getting to a constitutional issue and redefining some constitutional right or lack of right or power or lack of power. They're never going to get to race because there's going to be other things. Let's go to those other things, David. Right. Okay. I love this. This is a, let me, let me introduce the Occupational Safety and Health Act. It's saying that this, when people like me, we're going to already, we're going to dive

into the administrative state. When people like me say, you know what's happened in this country? And this is kind of a theme you hear Jonah talk a lot about and a lot of other folks talk a lot about. We have turned the constitutional structure upside down because what we've done, what Congress has done is said, you know what? All this lawmaking, that's hard work. You know what's easier? A 10-minute cable news hit. So I think I'm going to prioritize the cable news hit. And what we'll do is we'll kind of say to the executive

branch of the government, all this really hard stuff, we're just going to give you the power to do that. And so regulating safety and health in workplaces, that's your baby now, President. And I love this article from Cass Sunstein. It's 2008. And it asks, is the Occupational Safety and Health Act unconstitutional? And I love the way he begins it. He says, imagine that Congress creates a federal agency to deal with a large problem, one that involves a significant part of the national economy. Suppose that Congress instructs the agency, do what you believe is best, act reasonably and appropriately, adopt the legal standard that you prefer, all things considered.

Suppose, finally, that these instructions lack clear contextual reference, such as previous enactments or judicial understandings on which the agency might build. That would seem like you're punting too much, wouldn't it? And so then Sunstein goes on and says, remarkably, however, the core provision of one of the nation's most important regulatory statutes, the Occupational Safety and Health Act, is not easy to distinguish from the hypothesized statute, the one I just said. That provision defines an occupational safety and health standard as one that is reasonably necessary or appropriate to provide safe or healthful employment or places of employment. When the Secretary of Labor issues regulations governing tractors, ladders,

or electrical equipment, the only question to be asked is whether one or another standard is reasonably necessary or appropriate. That's a long way, Sarah, of saying that is a lot of power delegated to the Occupational Safety and Health Administration. A lot of power, a ton. And this is when you start to talk about things like non-delegation. Did they give OSHA too much power? And it turns out that really hasn't been fully litigated, but there are some indications, and we're getting already flashbacks to what we just talked about, there are some indications that the current court might be less enthused about delegations like this than previous courts, but under current authority, this delegation would seem to be fine, or am I wrong?

Yeah, is this the day that the courts overturn the OSHA authorizing statute? No, there are way better vehicles for attacking the administrative state and non-delegation doctrine. Frankly, you want something much more narrow. That's why the CFPB was always a better avenue. It's also something everyone kind of hates and it's new. No, they're not going to go through OSHA to get to non-delegation as a general matter. I think

that one is maybe the closest non-starter. Now, compare that to the CDC, for instance, and the eviction moratorium. That had a delegation problem, kind of, where if you want to read the authorizing regulation or whatever super broadly, that they actually can do whatever to stop the spread of the common cold, you can argue that's non-delegationation or you can say that's not really what that says, that it means within the context of things the CDC does for large scale something or other. I actually do think it's a non-delegation problem on the CDC thing, but I actually don't on OSHA. So yeah, I don't think that is the way it's going to go. Again, also not because of a constitutional avoidance doctrine,

but in this case, there is still an easier way to get to this legally. And that's why I still think it's going to be the next bucket. All right. Are you going to the emergency temporary standard bucket? That's right. All right. So you going to the emergency temporary standard bucket? That's right. All right. So here we go. So the act, so fans of advisory opinions who are by now experts in, among other things, the Administrative Procedures Act, know that as a general matter, a regulatory agency to initiate, to create a new rule has to go through something called a notice and comment process. In other words, it's got a published notice of the rule. I love when things are self-explanatory. What is the notice and comment process? Well, it's when you

give notice and allow people to comment. That's great. Some things are simple. You publish a rule, the public is allowed to comment on the rule. And then eventually, after the end of the comment process, the agency ideally will incorporate those comments or critiques where perhaps flaws have been pointed out in the structure of the rule. And then they'll publish a final rule. And the final rule becomes the law. rule becomes the law. However, this act, the Occupational Safety and Health Act, allows the secretary to bypass normal procedures in favor of promulgating an ETS to take effect immediately upon publication in the Federal Register if he determines, quote, employees are exposed to grave danger from exposure to 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. All right. So in other words, we got an emergency.

In this emergency, I'm allowed to bypass notice and comment, not permanently. You still have to do the rulemaking process, and you're given a period of time to do that, but you can put it in effect right now under those conditions. Sarah, you think it's easier to attack on that basis? Yeah, I think this is a real problem on several fronts. Let's just go with the first one, which is it's the DACA problem, right? It's the administration saying repeatedly and publicly that they don't really think they have the legal authority to do this. And then waiting and waiting and waiting and waiting and then doing it. Now with DACA, it was just that they repeatedly said they didn't have

the legal authority to do it and then did it after Congress refused to act, where the president's powers, as Justice Jackson tells us in a case that's totally unrelated to really anything he's talking about, the president's powers are at their weakest if Congress either acts in contravention to or thinks about it and refuses to act. And then the president's like, I'll just do it alone without Congress. So that's what DACA is. Here, you have something really similar as far as that goes. Congress has passed two, three acts based on COVID problems, money, all sorts of things. And they did not pass a vaccine mandate in any of those. And they could have. So, A, the president's powers, I think, are at his weakest. But two, as others have pointed

out, you could have done this nine months ago when the vaccine first became available and said, aha, we believe this is an emergency. We're going to use our emergency powers. Everyone must get vaccinated. Here's the order in which people are going to get vaccinated. This is going to be a process. Here's the one A's, here are the one B's, blah, blah, blah. Okay. Even maybe legally speaking, they wait until everyone who is desperate for a vaccine gets one. And so it's May, June, I'll even give them to June. Then they say, okay, we're using our emergency powers because now we have a vaccine surplus. Now everyone has to get vaccinated if you want to return to work. Great. But instead it's September. And I think

it's very hard to justify why you need to use your emergency powers and not go through notice and comment when you could have several months ago. And I didn't feel like Biden's speech actually laid out the emergency and why it couldn't have been done in June. He talked about it a little. You know, the numbers are different. The Delta variant, all of that. And again, I don't want to discount that outright. I do think that's relevant. But it's hard to say why now versus a month ago versus three months ago versus nine months ago. So A, I think that's a real problem

for even triggering the emergency power. Right. I think you're hitting the nail on the head on the weakest power. Right. I think, I mean, I think you're hitting the nail on the head on the weakest point. I think if he was going to, if you're going to craft an argument for the emergency power in light of all of the things that you just talked about, I think the argument would have to be something like this. When the vaccine was implemented or when the vaccine was created, when the vaccine was implemented or when the vaccine was created, supply, demand far outstripped supply. When we crossed the barrier where supply began to outstrip demand, the coronavirus was receding from the public at a steep rate. And you could see this, you know, this wave, just it was like the wave washed on the shore, crashed and went

away to the point where earlier in the summer, late spring, early summer, there's a lot of thought. We would even use language, Sarah, like during the pandemic, you know, like it was over. So then their emergency response is, wait a minute, we have two things that are happening now at once. One is a new wave that we did not expect and vaccine refusal that has now clearly become a crisis. So that's, I think that would be their argument to overcome this idea that, well, wait a minute, you've known, I mean, we've known this vaccine was coming and we had a pretty good idea it was coming before the end of the Trump administration, even weeks and months before the Trump administration ended. And you could have done notice and comment. If this was going to be a big deal for OSHA, you could have done notice and comment and we would already have a rule. We would already have a rule. And so I do think that that is a very interesting counter. Now, there's some interesting case law on this, but it's all pretty old. A lot of people were talking about a case from 1983 called Asbestos Info Association v. OSHA, where OSHA

tried to do emergency changes to the asbestos standard. And a lot of folks were looking at that and saying, well, this shows how much power OSHA has, even though OSHA lost the case. The reason why they lost the case is they couldn't prove to the satisfaction of the court that their regulation would save even 80 lives, 80 lives nationally. Well, here, you know, we're in a pandemic that has cost more than 600,000 lives, but the case doesn't really, you know, the case, this case doesn't really address or this that that 80 lives number i'm sorry doesn't really address the point you're making sarah because it's not the magnitude of the threat it's why do you are you bypassing the normal standard but then here's the next question it sounds like we're saying it doesn't, doesn't it sound like we're saying that if he

just does notice and comment rulemaking instead of the ETS, that maybe six months from now, eight months from now, he could just go dot his I's, cross his T's, and have a legally viable vaccine mandate under OSHA, vaccine or testing mandate under OSHA, that existing precedent would support? Maybe. Is that our conclusion? No, because we haven't done the substance bucket. Okay.

Go for the substance bucket. Go for substance. Go for substance. So we've talked about using the ETS power. And why? So by the way, some fun history here. And if you want the written version of advisory opinions, I actually think the Volokh Conspiracy blog

that's on the Reason website is about as close as you're going to get. And anyway, I'm borrowing some of what they wrote here. The history. So those emergency powers have only been used nine times before. Six of those were litigated. Five were struck down. So first of all, your ETS powers in general, your track record isn't great. So let's move to the substance, though. Now, there's three parts of this. We haven't really

broken this out, right? There's the federal employee part. I don't really think anyone is, um, arguing about the federal employee part and whether he has the power to do that. That goes really to a vaccine mandate itself. That's your Jacobson issue. So federal employees, you're getting a vaccine, uh, federal contractors, pretty much the same thing. A little bit more wiggle room. Not really. You're getting a vaccine. Federal contractors, pretty much the same thing. A little bit more wiggle room. Not really. You're getting a vaccine. So we're really, this whole conversation has been about those private folksy folks. So the OSHA regulation says that it has to be a substance or agent. a substance or agent. There's an argument that a virus is not a substance or agent, maybe.

But there's a new hazard also. Maybe it's a new hazard, maybe. Maybe a new hazard simply refers to a substance or agent that's a new hazard. I think there's going to be some discussion around that. But I think a bigger problem might be the grave danger. So does COVID currently pose a grave danger to all of these employees? And again, this is where the making it about how many employees there are becomes relevant. It is not as we have, again, we have not seen this regulation because OSHA hasn't put it out. But if it's truly only based on your number of employees and not on whether those hundred employees all work from home, for instance, then it doesn't pose a grave danger to those employees. Whether, you know, masking or a testing or some other opportunity, um, and you work from home or most of the employees all work outside, for instance, that's going to be a problem as they

send out this regulation that maybe they will handle. Maybe it'll be, you have over a hundred employees. They work who work in the office inside. In which case, then I think the grave danger thing, they actually do meet that prong, but it's going to be, that grave danger prong is a problem for them if they don't make some of those distinctions. So that's my substantive bucket thought. That even if under notice and comment, you have a problem.

Right, right. Because I think you're going to have to locate your danger in the workplace. Because is COVID a grave danger? Yeah. Yeah, it meets the test of a grave danger generally. we're going to mandate that employers make your employees be generally pretty healthy people so that they can be full participants in the marketplace and healthy when they come into work. It's the danger. You're generally locating your danger in the workplace. So if you have 100 employees and they've all in the pandemic transition to they've got their their work they're working from home and maybe it's a call center or something like that then the workplace is not the source of the danger it's just the general environment in which they live

but if on the other hand you've got people working close together maybe it's a warehouse type situation assembly line type situation, cruise ship type situation. I mean, there's all kinds of situations where it's unavoidable that people be close together. We saw this with the meatpacking breakouts early on in the pandemic. Exactly, exactly. So I think that substance bucket is a very key bucket. a very key bucket. And if the lawyers on crafting the rule are smart about this, it's going to end up being narrower than what Biden announced. And this is something that in the Trump administration, we actually saw not infrequently that there would be sort of

a dramatic announcement of an executive order. And then you go read the order itself or a dramatic announcement of a new rule and you go read the rule itself. And it was not quite as big as what was initially stated. So we will have to see about that. But I do agree with you, Sarah, to the extent that you're talking about regulating activity where the workplace itself is not the location of the danger, you're going to have a substance problem. a limiting principle. The CDC never could come up with a way to read their authorizing language and their action and then come up with how it would ever be limited in the future. I think OSHA will have an easier job doing that substantively, but they still need to do it. So a new substance agent, sorry, a substance agent or new hazard poses a grave danger in the workplace. If you can do this, give us examples of stuff you can't do then. And that's going to be something

that the lawyers need to start. They need to have post-it sticky notes next to their bed. So when they think of one in the middle of the night to give Justice Kavanaugh, they need to just have those already. Tons of examples of the limiting principle. If they can't come up with that, like the CDC could not, this is dead in the water. Right. Now, you know, what's interesting as we walk through all of this stuff is that it's an interesting, I think, lesson in how expansive the federal governments, especially the executive branch's powers are. Because if you go into a workplace, especially one that involves a lot of hard physical labor and some sort of inherent danger to the work, OSHA is an extremely relevant part of your everyday worker's experience. part of your everyday workers experience, all enacted under the Commerce Clause, all under this very broad statute that has delegated an immense amount of power to the federal

government. And so a lot of us sort of walk around in our daily lives without realizing how much of your daily experience is regulated by the federal government. And then something happens like this where that power that exists is they're attempting to use that a power exists for a purpose that's very controversial everyone yells tyranny and fascism and then you walk through the legal analysis and you're thinking wait a minute there are legal ways to attack this but there's also a lot of existing precedents that supports this.

And it's not quite as cut and dry as it would seem when people are screaming tyranny and fascism. Why is it? Because there's an enormous amount of power over interstate commerce that has been delegated to the president of the United States of America. Just an enormous amount of power that is typically exercised in a way that's not controversial to the average voter. Then here comes something controversial to maybe not the

average voter, but the average Twitter user. And it causes the cries of fascism, cries of tyranny. And I'm sitting here thinking, welcome to the preexisting administrative state, guys. Okay, David, one last potential legal challenge that we haven't talked about is another hook that the president mentioned was that all medical facilities receiving state federal funding must have a vaccine mandate. And if they don't,

they will lose their federal funding. And so that's where you have all these Republican governors saying we're going to sue under a similar theory potentially to that same Obamacare case. People don't remember all the details of the Obamacare case, but actually they did strike down part of Obamacare, the Medicaid portion where they were pulling federal funding for states. And they said, no, that's too coercive. It has to be more tightly tied to the spending you're pulling. Here, as long, I think, as they're pulling federal funding from individual facilities, which would be the only thing that makes sense, rather than pulling all funding from the state, it's much different than the Obamacare problem. But nevertheless, I think you're going to see those lawsuits try to piggyback on the NFIB versus Sibelius coerciveness theory. And remember,

this was used more recently in the Trump sanctuary city funding. Asterisk, I worked at the Department of Justice during those lawsuits. But the idea was the administration was going to pull some of these grants for police officers and health and safety grants, rather, if you were a quote unquote sanctuary city not cooperating with the feds potentially over illegal immigration. And the court said, no, no, no, that's way too coercive. It's not closely enough tied. And those lawsuits have all petered out. So I think that's probably not a productive route, but it will be one we're going to see.

So I might as well mention it. Yep. So that's a long way of saying, I don't know how this is going to come out. But wait, David, we haven't gotten to the most exciting part. What? There's a more exciting part than this?

The non-delegation doctrine? Oh, David. Administrative Procedures Act? Commerce Clause? The sexiness is about to begin. Like, that was some ankle at best. We're about to go full Monty now. So, if OSHA uses their emergency, their ETS powers,

did you know that you're not going to sue them at the district court? This is going to be a totally different procedural thing and one that we so rarely get to see. This is the excitement. So first of all, you don't sue in district court because it's their emergency powers. You go straight to the circuit court. So everyone is going to flood all the different circuit courts. Presumably we will have one of these lawsuits in every circuit court in the country potentially because it's actually all going to get litigated in only one circuit court. This is going to get consolidated and that is determined by the judicial panel on multi-district litigation. And again, thank you, Josh Blackman from Bollock Conspiracy

for spelling this all out and doing the homework of this. So the JPML will decide which circuit the cases will be consolidated in. And according to statute, it will be, quote, random. Hmm. Random. So what's interesting here is that it it actually creates an incentive for more lawsuits to get filed in these circuits, because if the only lawsuits are filed by the conservative side, the anti mandate side, and they're filed in, you and the Eleventh Circuit, well, then that consolidated case is going to be heard in either the Fifth or the Eleventh Circuit. Well, that's not great for the Biden administration. So what could happen is you have people who are going to sue and say that OSHA didn't go far enough and sue in the Ninth and Second Circuit. And so it goes until, of course,

all the circuits are going to be filled, is my prediction. So I think this is going to be very exciting. Can they have a live drawing where a blindfolded person picks out a ping pong ball with the number of the circuit on there? I hope it's the Chief Justice who does it.

I would tune in for that. I would too. But David, it gets even weirder. So all of that, of course, is going to take some time. In the meantime, a single circuit can issue a stay. And that's where the rubber is going to meet the road here. They file in the Fifth Circuit first. If the Fifth Circuit can issue that stay

before the cases are consolidated, that stay sticks. Right. So if you're the Biden administration, what you're doing is you're promulgating an ETS and you're also starting the notice and comment process post haste. You're starting that process because you know what? You could very well end up with a notice and comment process mostly underway

by the time the ETS is fully litigated at the Supreme Court of the United States. Yeah, this will have big shadow docket ramifications as well. Because again, let's say that you file in the Fifth Circuit first before the cases are consolidated by that multi district panel. You could then, of course, as we have seen now multiple times, try to get on the Supreme Court's shadow docket to have them reverse the stay in an emergency posture. stay in an emergency posture. Or at that point, a la that death penalty case that we talked about, the Supreme Court could say, aha, nope, we're just going to take this case because it's coming here anyway. I don't think they're going to do that, but they could. They could. Wow. Okay. Are all of our buckets, have we emptied all of our buckets? Yeah, I think that was a pretty good show.

I think that was pretty good. And we've caught more. I don't think we're going to get to everything. Oh, no, I meant the show, like the striptease of the vaccine mandate, where at the very end, Full Monty, like the movie, guys, the British movie that was amazing. And the old dudes just rip it off at the end. And that's what that multi-district consolidated circuit litigation

for me, like that's what that is. It was all building to multi-district consolidated jurisdiction, multi-circuit consolidated jurisdiction. My goodness. That's right. Okay. But we have to get to that sixth circuit opinion. What, but we have to get to that Sixth Circuit opinion. What else do we have to talk about? We also have the United States of America versus the state of Texas complaint filed on Texas SB8. So this is the... Well, that'll be relatively quick. Yeah.

Yeah. Yeah, that one's pretty fast. Yeah, that one's pretty fast. Biden administration is suing the state of Texas, seeking declaratory judgment that it would invalidate or block enforcement of the law. And my short response to this is that you're still suffering the same kind of defendant problem that you've had with previous litigation in the case. The statute was designed to evade this kind of litigation. And I'm not so sure this is going to do the trick. Sarah,

what are your thoughts? Okay. So you get around one big problem. That's that 11th amendment, uh, sovereign immunity problem. The federal government can sue a state. No problem.

We don't need to talk about ex parte young ever again. Neat. Um, however, as you said, David, there's still a defendant problem because, okay, you can sue the state of Texas. Congrats. The state of Texas isn't doing it. Uh, and what they did instead was they sued, um, basically the state of Texas, every state official and any private persons who might bring a case like this.

Now, the theory of that is that they are then agents of the state. Now, like think 1983 litigation. There's plenty of times where you can sue a private person when they were acting under color of law as a state agent. They're called police officers, school administrators. They are generally paid by a state or local government. The local government theory, you know, still falls under the state. This is totally different. Now, I've had people point out, and certainly the United States makes this point in their brief that what makes this law unique is

also its fatal flaw and that the state basically said, we can't use our criminal enforcement powers. So instead, we're going to deputize everyone in maybe America, maybe the state of Texas, hard to say. And therefore, that's why they are acting as agents of the state. and therefore that's why they are acting as agents of the state? Ew. Look, that's the only theory. So if this thing flies, it flies under that theory. But I think there's a big problem with saying that maybe anytime there's a private cause of action,

that person is now acting under color of state law? What? So, and if you're thinking to yourself, yeah, but this one involves a constitutional right. Let me give you an example. Wrongful death statutes. what? So, and if you're thinking to yourself, yeah, but this one involves a constitutional right. Let me give you an example. Wrongful death statutes. OJ Simpson, right? He is found not guilty by the state and the state's like, yeah, but you could still sue him privately. So they did. It's a constitutional right to not be murdered by the way. Uh, so the Brown family brings a wrongful death suit against oj simpson were they then the state

of california what no way so i think this has i just that whole theory has so many implications beyond abortion that i want everyone to take off their abortion crazy time hat and really think about whether you want every private right of action to now be under color of state law. Very different, by the way, than the Ketam relator cases, because remember in those, first of all, it is very specific in the authorizing statute that you are a relator. You are acting in the shoes of the federal government. And two, the federal government gets some of the money. In this case, you keep the money. Same with wrongful death, right? The state doesn't get a cut of your wrongful death money, and the state does not get a cut of your $10,000 per abortion money. Again, I think this law is

terrible. I think it's gross. I think it's awful. But put all of the adjectives in that bucket. But you don't want to make law on a law you hate until you have thought about all the implications of that. And for me, these implications

are bonkers town. Yeah, I mean, the bottom line is that the fastest path to dealing with this law one way or the other is somebody's sued under the law, if a state passed a new defamation standard, they've read Clarence Thomas and they've seen, oh, you know what? I think that New York Times v. Sullivan is due to be overturned. And I really don't like the fake news media. So we're going to pass a new defamation standard. And under that new defamation standard, which is we're not going to have the state enforce it,

but if you feel like you've been defamed, you can now sue a media entity. And as long as you prove negligence, you win, no matter who you are. Well, if you're the media entity, your basic job is you're going to continue to do your work. And then if you're sued under the law, you're going to raise the constitutional defense. The interesting thing here, here's what I think makes this text that why the Texas statute has stuck even as long as it has.

In other words, we haven't had the lawsuit. We haven't had the Texas abortion clinics are staying shut down, is you have Dobbs hovering over all of this. That's actually sort of the sledgehammer in the background because with the possibility that the Supreme Court might overrule Roe and Casey hovering back there, that raises the risk of going ahead, the legal risk, the financial liability risk of going ahead and operating according to business as usual, get the suit come in, swat it aside under existing law and go on. It's the reality that that Roe-KC framework is under question. This would be about like if a state changed the defamation standard and the court had also taken a case questioning

New York Times v. Sullivan, and that was hovering out there. And David, to make the analogy fit even better, the Biden administration doesn't like Texas's new defamation law. So they sue the state of Texas over that defamation law, arguing that now anyone who could sue someone else for defamation is a state actor. Yeah. So you could you could 1983 anyone bringing a defamation suit or a wrongful death suit. So here's my question. What is the distinction between blah and gnaw dog? Gnaw dog is like, nice try. Blah is like, you haven't thought this through, man.

Okay, okay. That's a good, okay. That's a good distinction. All right. Should we move on to the sixth circuit? Oh, judge the par, judge the par, judge the par. Do you remember how we talked about working the refs? It's like, I'm so glad we had that conversation last week because I read this and the whole time was thinking

about you and was like, man, it's like if you're a judge and instead of writing a law review article, you just write a concurrence. Right. Yeah. Do you want to set this one up, Sarah? Okay.

The state of Kentucky passes a law with two important parts. One is what amounts to a heartbeat bill. You can't have an abortion after six weeks, but they have kind of a cool prong to it, which is cool, meaning innovative. Not like that I agree with it necessarily from a policy standpoint, but legally it's similar to Texas and that they're all trying to get around the courts. So if you strike down six weeks, it becomes eight weeks. If you strike down eight weeks, it becomes 10 weeks. Uh, and it's turtles all the way down there. Uh, and then a second part that says, um, a doctor who performs an abortion that he knows is sought because of the fetus's gender, race, or disability status, Down syndrome status, commits a crime. So the panel at the Sixth Circuit strikes all of this down, both sides. Judge Lepar concurs in part and dissents in part. He concurs in part because the Supreme Court's precedent in

Roe v. Casey clearly applies to that six-week trickle-down ban. He dissents in part because he believes that, in fact, it does not apply to the gender, race, disability side of it. But that could have been three paragraphs. That could have been three pages. But no. Judge the bar. Man, he has some thoughts on how we got here. So we have seen other judges criticize Roe and Casey, how they're unworkable, maybe. Judge Thapar, however, what makes this opinion special to me, David, and actually a very worthwhile read, I've read it two and a half times at this point. Is he walks through the history leading up to Roe, what the opinion on Roe leaned on, why that was faulty, how Casey comes around, and then each part of current abortion jurisprudence and specifically why those words or standards have become unworkable. It's actually it was there were parts of it that were very enlightening and unlike some of the other ones we've seen.

This was a law review article. There was no emotion. There was not a whole lot of quiffiness. There was one line that I did particularly like. Weighing such imponderable values against one another would be akin to judging whether a particular line is longer than a particular rock is heavy, citing Scalia concurring in a case from 1988. That's about as snarky as it got. Yeah. Yeah. I, you know,

so number one, uh, as much as Kentucky and Tennessee are similar in many ways, this was Tennessee, not Kentucky. My bad. Um, but number two,

if you're going to work the refs, this is the way to work the refs. Um, you know, this is something that literally could read a great, a, work the refs, this is the way to work the refs. This is something that literally could read with, of course, the distinctions based on the different fact patterns and dobs in this case. It was opinion that could read like a majority opinion that would strike down the Roe-Casey framework. It was very thoughtful.

It was very thoughtful. It was very comprehensive. And he begins, sort of the key thesis is the Roe-Casey framework doesn't just conflict with the original understanding of the Constitution. It cannot be justified under any modern approach to constitutional interpretation. Even living constitutionalism taken seriously permits Tennessee's and many other states' efforts to combat fetal pain. After all, the living constitution theory considers evolving standards of decency. So what he did was really interesting, and I think he kind of, he made an argument in a very comprehensive way that a lot of us who have been opposing Roe from the beginning have been trying to make. And he just did it very systematically, very comprehensively, calmly, rigorously.

And look, as I said in our previous podcast, I don't have a problem with working the refs in these concurrences. I don't have a problem with that at all, as long as it's done well. I mean, I don't want to read some sort of, you know, like daily wire op-ed masquerading as a judicial opinion, but if it's something that's serious and it's rigorous and it's pointing out, you know, in the, the, the, you know, the, the Harlan dissent mode that something here is very, very wrong with the law. I like it. I applaud it. Um, and you know, it's, it's, it would be interesting to me to get one of the, uh, justices in a room, one of the Supreme court justices in a room and see what they think about in that. David, you gave one other reason why

one might write a concurrence like this last week, which was auditioning. Oh, this is an audition. But here's what's interesting to me about it. If you as a circuit court judge had written this in 2000, it would have been the opposite. It would have kept you off the court. 2000, it would have been the opposite. It would have kept you off the court. Nobody could get nominated who had written this in 2000. What's interesting to me, and I experienced this at law school where many of my classmates in the wake of John Roberts' confirmation where there was really nothing about him. He hadn't written a lot. He'd been a judge for a hot second. And that was seen as a virtue because they couldn't pin him down in the confirmation hearing. And so then all of my friends in law school were like,

we're not writing law review notes because then they can pin us down in confirmation hearings. And I'm like, you're never getting nominated anything. And that's just a bad way to live life. Don't spend your whole life on something that is largely out of your control and hold yourself back from things you want to do. Maybe that doesn't apply to all things, LSD or something, but like it certainly applies to speaking your mind on topics that you're passionate about. And of course, the pendulum has swung the other way. Now, I don't think you'll get nominated if you haven't said certain things because the conservatives will not tolerate such a nomination. And that certainly, I would

think, factored in a little bit into Judge Thapar's thinking. This will be a hell of a confirmation fight, even so. But he probably is now the number one choice among conservatives if a Republican were to win the White House, either in 24 or in 28. He's pretty young, actually. Well, and he was already shortlist. Let's be clear about that. For sure. Yeah. So this is a guy who's already shortlist, who just put himself probably in the shortest of the shortest of the short list with this opinion. And what's interesting about this is we may look back at Justice Barrett as the last of the old school judicial career track Supreme Court appointees because the abolition of

the filibuster for Supreme Court justices was pretty recent. It's Gorsuch. court justices was pretty recent. It's Gorsuch. And so even with Justice Barrett, who's 2020, of course, even with Justice Barrett, you're doing a lot of extrapolating. Wait, she was in this kind of Bible study and she belonged to this kind of group back in the day. And because of a lot of her writing, and she was also like Roberts on a court for a hot second, there was a lot of extrapolating going on. Well, she's a serious Catholic. She's going to be like this.

It was Scalia as a mentor, so she's going to be like this. And so we're going to be, as these justices work the refs, like if Justice Willett, friend of the pod, is nominated for the Supreme Court. Nobody's going to wonder what he thinks about qualified immunity. Justice Willett, what do you think about qualified immunity? Well, I would refer you to concurring and dissenting opinions exhibits A through Z. So I think this is a natural consequence of post-Philibuster Supreme Court nomination process, where also the court has assumed a much larger role in American life. So people are going to be wanting to know what they're getting pre-Philibuster, post-Bork, pre-ending of Philibuster. You kind of had to

thread a needle. It was hard. It was hard. And everyone talks about these Republican presidents who you did a bad job with so-and-so or so-and-so. Who's getting through the filibuster? That was always a question. Who's getting through the filibuster post-Fork? the filibuster post-Fork. And that was a real political consideration. I mean, it's all well and good to nominate somebody that's like a red meat originalist, but if they go down in a ball of flames, they're not, you know what, they're not a Supreme Court justice. So this is an interesting post-Gorsuch strategy, which I think is going to be, we'll see more of. So I want to highlight a little bit of the substance of what he said. So first of all, I think he really lays out the case for why taking this out of the hands of voters and legislatures and putting it in the courts has caused an enormous amount of distortion, as he puts it. Wrenching responsibility from the hands of state legislatures and giving it to judges has resulted in acrimony and results

oriented decisions. He doesn't mention Supreme Court confirmation hearings, but like, boy, is that there too. And then he walks through, I think, some of the better judicial arguments for why the Casey framework, or if you want to call it now the June medical framework, has been unhelpful and caused some of this, what I think he would call like judge-made law. So for instance, on the undue burden test, which I've said, like we've been arguing over what an undue burden, like both words of those and like overly agonizing over it for 30 years. As he puts it, it is similarly hard to shake the impression that the undue burden test only permits a state to protect unborn child's life only so long as it's not too successful, quoting Scalia's Casey concurrence and dissent. A state that wishes to protect unborn children

will naturally pass laws aimed at reducing the number of abortions. But because Casey offers no concrete way to assess when a burden becomes undue, judges often think that any decrease in the number of abortions fits the bill. Therefore, the more successful the law, the more it violates undue burden. And then he walks through some of the terms. Large fractions is one of his call outs. In most areas of the law, facial challenges to a state's constitutionality must clear a high bar. But in this case, abortion is different. Under the undue burden test, courts analyze only whether an abortion restriction, quote, will operate as a substantial obstacle in a large fraction of the

cases in which it is relevant. And then he walks through how different circuits have measured a large fraction. In his circuit, it's above 12.5% and maybe north of 50%. In the ninth circuit, In the ninth circuit, 21.5% is large enough. 1% might be large enough in some circuits. I mean, he just walks through this. That's ridiculous. I don't know what a large fraction is. Does it mean?

I don't even know if it means the majority or not the majority. I think a large fraction, I think one out of four is a large fraction, I guess. I don't know. Benefits in balancing. This was the Heller stat test. So you're supposed to weigh the benefits in the balancing. That's where he uses the, you're supposed to determine whether a particular line is longer than a particular rock is heavy. Pre-enforcement challenges have been a mess. And he walks through that. I mean, I think he does a really nice job on that. And that's before he even gets to the gender, race, and disability part of the law. It's well-written. We'll put it in the show notes. Here's how he ends. Justice Holmes once remarked that a page of history is worth a volume of logic. The argument that the Constitution contains a right to abortion has neither. As shown above, the historical evidence is clear. The Constitution leaves decisions like this to the states.

The state legislature can do what we can't. Listen to the community, create fact-specific rules with appropriate exceptions, gather more evidence, and update their laws if things don't work properly. And if the public is unhappy, it can fight back at the ballot box. The court should return this choice to the American people where it belongs. Thus endeth the law review, note.

Yeah, it's impressive. I mean, we're going to put it in the show notes, and I would urge you to read it. And it also has a very interesting historical section regarding the history of abortion regulation, where he points out that some of the arguments, the historical arguments used to justify the existence, even prior to the founding of the United States of America, of an understanding that there was a freedom and a liberty interest in abortion,

some of it just turned out to be wrong, like just historically wrong, which is really interesting stuff. So I would urge you to read that. Blackstone gets nine shout outs in this opinion. Oh yeah, yeah. There's a Boku Blackstone here. Absolutely.

So I would urge you to read it. It's very well done. It'll be in the show notes. We're also putting in the asbestos case in the show notes, even though it's the early 1980s. It's an interesting exploration of OSHA. And I'm going to flood you with OSHA stuff. There is a whole Congressional Research Service paper on emergency

temporary standards. We'll throw that in the show notes. So you know why, Sarah? Because we want our listeners to walk into this coming weekend and to going to all of the parties that they're going to go to where someone casually mentions, can you believe that Biden

vaccine mandate? And we want our listeners to be able to say, can you believe that Biden vaccine mandate? And we want our listeners to be able to say, let's discuss emergency temporary standards, shall we? All right, David, two pieces of potpourri. One, Justice Breyer is on the book circuit. He sat down with Chris Wallace this weekend on Fox News Sunday, a very Breyer-y interview. Fox News Sunday, a very briery interview. It was delightful. He's delightful to watch. And gave no clues as to retirement. Honestly, he could retire tomorrow and you'd be like, yeah, okay, maybe. But what was great about the interview and all of his interviews and the book is his point that this is not about politics. Please stop making it about politics. Chris Wallace then asked the question that Justice Scalia answered 10 plus years ago, where he talked about whether he would only want to be replaced by a Republican president.

And he said, well, I certainly wouldn't want to be replaced by someone who's going to undo all my work. So that's how I would think about it. And Chris Wallace turned that question to Justice Breyer and he sort of was like, yeah, I see that. Sure. Like, look, we're humans. I'm not dumb. I know who the president is. Thank you for the reminder. So it was an interesting moment in the interview. David, second potpourri that I've been holding on to as a special surprise for you. Oh boy. that I've been holding on to as a special surprise for you. Oh, boy. David, someone has sent you a present through me.

Okay. It's a Naught Dog stamp. Really? Yes. Now, wait a minute. Why is it coming to me? Did you get one also, I hope? Yes, yes.

Okay. Two Naught Dog stamps. Yes. Yes. Okay. Two gnaw dog stamps. Oh, that is glorious. Yeah. He was making one for his wife and avid AO listener. And, you know, sort of one of those things where I assume the bulk purchase was,

uh, not significantly more expensive than the single. So thank you so much. This, um, it is in a place of honor in my house, as I'm sure it will be in David's when I give him his. And I have, I'm going to stamp everything with it.

I may stamp the baby with it tonight, honestly. Oh, this is, this is amazing. I love it. I love it. Oh, question, Sarah. Are you watching, has it, has the impeachment FX series started yet? Yes, and I haven't watched it.

Okay, I haven't either. We'll save that. We need to watch this. And we need to report back to AO, I think. I also have some good reading that I've done that we need to, like, we're gonna have a slow news week here at some point and we'll take it up then. Yeah. No, we've got some culture

stuff to really cover. We. No, we've, we've got some culture stuff to ground, uh, to, to really cover. We've got, man, this, this fall television, we've got morning show coming back,

succession coming back. We have American crime story impeachment. I mean, there's just a lot. Dune premiere. We're going to have a 10 part AO episode entirely dedicated to Dune. Oh God. It's going to be glorious.

Yeah. And I still have potpourri we haven't gotten through. So we'll have more potpourri on Thursday I know alright wow okay that's a lot please go rate us on Apple Podcast please subscribe please check out thedispatch.com

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