Advisory Opinions - Inside a Supreme Court Argument

Episode Date: January 10, 2022

On today’s episode, David and Sarah do a deep, deep dive into the vaccine mandate oral arguments at the Supreme Court. Sarah walks us through the HOP's (husband of the pod) arguments, and she and David decide the vital question of which basketball analogy to use to describe the likely outcome. They also take a quick look at the health care worker mandate and make their predictions.   Show Notes: -Biden v. Missouri oral argument -Nat. Fed'n of Indep. Bus. v. Dept. of Labor oral argument -Wall Street Journal article with sketch of Scott -SCOTUSblog: “Court seems poised to block vaccine-or-test policy for workplaces but may allow vaccine mandate for health care workers” -Reason: “Sloppy Arguments Over COVID Mandates at SCOTUS” Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, and this is the podcast. This is the podcast that we have all been waiting for. This is the podcast about the vaccine mandate cases argued at the Supreme Court. Not just argued at the Supreme Court, but the big one, the biggest one, the one impacting two-thirds of all workers in the private sector in the United States of America was argued by none other than Scott Keller, husband of the pod. And we're here to break it all down. Now, we're just going to go ahead and say this right out of the gate. Sarah, are you coming at this from a purely unbiased and detached position?

No, David, I am not for several reasons. Husband of the pod, I have a relationship with, I would say it goes beyond friendship. I would say that creates some bias. I would also say that to be perfectly frank with you, I have a financial interest in the husband of the pod. We do have a joint bank account and I believe Virginia is a common property state. And so when he makes money, I make money. Now, he does not that I'm aware of. I mean, I haven't seen the contract. I don't think he gets any bonus for winning this case, but he did get paid to do it. Right. Yeah. Yeah. And it's fair to say if he wins the case, that increases the chances of the future. It might. Yeah. Yeah. Yeah. And it's fair to say if he wins the case, that increases the chances of future.

It might. Yeah. Yeah. Yeah. So we're just laying our, thank you for that detailed description of your relationship with, with Scott. I thought just husband was enough, but I, I, but you need to explain that to people. I don't know. Yeah. Yeah. I, well, you know, that's, that's the kind of conflict of interest disclosure that our listeners expect and demand. There are marriages of convenience. This isn't one of them.

Fair. This isn't for like a visa. It's not. No. No. Okay. I mean, it's, you know, he looks, he's a pretty cute guy. As everyone, it's funny.

So we did not send out Christmas cards this year. Please don't be offended if you didn't get one, because we didn't send them. But I was joking with a few friends yesterday that I hope they got our late Christmas card, assuming they subscribed to the Wall Street Journal, because Scott was the A1 above the fold sketch of the argument in the Wall Street Journal. I'll put it in the show notes. It's amazing. But also he looks really good in the sketch. Like it's a very sexy little sketch of him. So you're framing it, right? I'm definitely framing it. I have reached out to the artist also to see if I don't I assume it's very expensive, but even so, I would pay the artist for the sketch as well.

So let's do the podcast this way, because we've got a lot to cover. Because not only is this a fun podcast, because this is the husband of the pod in action, it is also on a really consequential case for which there was a lot of different streams of questions flying back and forth. And then there was a whole other case not argued by the husband of the pod involving CMS. But argued by friend of the pod, Liz Merle from Louisiana, the Solicitor General, who has been on our podcast before. That's correct. Although I would say that my relationship with Liz is one of friendship and that I don't have any financial interest in her career. She has done laundry at my house though. Wow. Wow. That's getting pretty close.

That's right. Yeah. These disclosures are vitally important. So we've got to talk about, I want to talk about the actual mechanics of getting ready for the argument. Some of the things that you couldn't share before the argument. Love to hear some of those things. Talk about the argument itself and then talk about the CMS argument. And then talk about the potential decisions which could come down as soon as today. So, yeah, Sarah, you were explaining all that in the green room. Let's start with that, actually. So the mandate goes into the business vaccine or testing mandate goes into effect today.

Now, interestingly, it's very unclear, actually, what that means, because you do not have to have all of your workers vaccinated by today. And in fact, this came up at the argument. You do not have to have all of your workers vaccinated by today. And in fact, this came up at the argument. But because vaccines have to be spread out, et cetera, the mandate goes into effect today. You have to have all your workers vaccinated. It's a little less than a month, I believe, from now. And so you would need to get right on it. But it's different than some laws that go into effect where you could start enforcing them right away.

Nevertheless, today's the day. And so there were several options. One, the court could have simply issued a little mini order on Friday or during the weekend. They still could, saying that they're issuing an administrative stay. Now, that would mean that they are staying the mandate. The mandate cannot go into effect, but not for any reason on the merits, but simply because they need more time to think through it, to write the opinion, et cetera. So an administrative stay is purely keep status quo in place while we do our work. I think that that's unlikely for reasons that we can talk

about based on the substance of how the arguments went. Okay, next up. Midnight last night, right? That was a big moment. So husband of the pod and I sat there. Yes, we were watching the football game. Don't worry. But also, you know, hitting refresh a lot. Nothing. Nothing happened. So next moment of decision was 930 this morning when the orders list came down. The orders list was two minutes late. Very long two minutes. Thought for sure that the lateness of the orders list meant that we were getting something. Drum roll. No, we got nothing. And in fact, we got nothing, nothing. The Harvard admissions case? Nope, not there. The 303 Colorado website gay marriage case? Nope, not there. There was a statement signed by Barrett and Sotomayor, by the way. Fascinating.

Talking about controlled substances and the career criminal sentencing stuff about sentencing enhancements and that the sentencing commission has never defined control substances. There's a circuit split. Some circuits think that it's only federal controlled substances. Some circuits say that it's state controlled substances. Sotomayor and Barrett combining forces to say, hey, sentencing commission, do your job. They do not have a quorum right now. So it was really, hey, Mr. President, get the sentencing commission up to speed so that they can do their job and fix this. But yeah, that was pretty boring compared to what we were hoping for.

Okay. So here's what we have moving forward. Nothing. We don't know anything. But... That was some buildup to nothing. I still think the most likely time is tonight. But they are hearing arguments this morning. Now, it could be the case that the justices have finished their writing, Now, it could be the case that the justices have finished their writing, handed it over to the site-checking staff while they're hearing oral argument, and so we could get something

at any point today. I don't think that's the most likely. I think that, in fact, they're probably not done writing. That means that we could either get an order later today, opinion forthcoming later. I think if that was going to happen, we would have gotten it with the orders this morning at 9.30 a.m. So I think we are expecting both an order and something written down. I think the most likely is tonight, I would put it between 6 and 9 p.m. Interesting. Okay. So listeners will have this podcast and they'll have listened to it and then be fully informed and prepared for whatever comes down. So that's perfect. That's absolutely perfect. All right. So let's do it like this. We'll talk about

the run-up to the oral argument. And so just sort of walk us through, Sarah. There's some stuff that you said last time that, hey, I can't wait to talk about this, but I can't talk about it right now about the strategic preparation. And I remember you telling me about it and I was looking for it in the argument and saw some interesting clues that told me which strategic directions you guys chose. But yeah, why don't you break that down? So there was some argument about what kind of approach to take and how to walk into court. Because there's, as you've said, and we've both explained at length in multiple podcasts, and we've both explained at length in multiple podcasts, there are a lot of different avenues of attack on the vaccine mandate of increasing sort of constitutional scope and consequence to

decreasing constitutional scope and consequence. So yeah, walk us through a little bit of that. Yes. So when you and I talked about the buckets of way before, way before, when it was simply President Biden saying he was going to issue a vaccine mandate and that my husband had nothing to do with anything. I sort of put this into buckets on two sides of the constitutional line. It was the congressional buckets. Does Congress have the power to do this? If they passed a law saying vaccine or test mandate for all employers, could they do that? Can Congress delegate this to OSHA? Did Congress delegate this to OSHA? And then you kind of cross the Rubicon over to OSHA. Can OSHA do this and did they do it correctly under their ETS powers? So I think that it was always going to be, of course, you're going to make all of those arguments. There's no reason not to in legal world. But when you're going into oral argument, it's very different than your brief. Your brief is sort of a cascading, if not this, then this,

if not that, then this. But an oral argument, you're really going in with that opening statement with guns blazing on what you think is the way you win. Now you're prepared for the questions on the other stuff. You've briefed it all up, but what is the thing you go in with? And I think that if you go to the blogs or, I mean, really nerdy blogs, really, they need to be the nerdiest of the nerd blogs. You will find the big debate on major question doctrine. Major question doctrine is the, did Congress delegate this to OSHA question? And the idea, and it came up in oral argument a lot, especially from Justice Gorsuch, but a little Kavanaugh in there, which was interesting for major question doctrine fans, to define major question doctrine. Is major question doctrine, did Congress delegate this to OSHA in a non-delegation-y way, as in you have to be specific in your delegation? Or is it, did Congress delegate this to OSHA and it's ambiguous?

And so the major question doctrine only applies to ambiguous language. And there's this Scalia line about Congress doesn't hide elephants in mouse holes that goes to kind of the ambiguity, like, oh, if there's some word and it's ambiguous, you're going to assume that Congress didn't, in an ambiguous word, put this whole elephant, this major question that way. But here, it wasn't that there were a lot of ambiguous words. I think there could be some argument that maybe the word necessary is ambiguous or something like that. But by and large, the argument was, no, it's not that it's ambiguous, though. If you want to find necessary

is ambiguous, feel free to. But it's that Congress in giving broad powers to OSHA, perhaps, did not give them this huge major question without ever saying so. And the way you know that is because in 1991, they did pass another law about bloodborne pathogens, and they never talked about vaccines there either, or a testing mandate. Therefore, we can read that Congress never addressed this major question. So that's one version of how you can go down this path. The problem with that, David, though, is that for justices who are interested in your major question doctrine argument, you've already won them. Yeah, right. And if that's the case, then why are you going in with that as your number one argument, right? The way you go into oral argument is counting to five. And so then you go to that lesser argument. You know, if you think of them on a scale, like a vertical scale,

the constitutional, like Congress doesn't have this power under the commerce clause is like your highest on the constitutional scale. That's a huge decision that the courts would have to make. And if you've basically already won on all the steps of the ladder up to that, if you're getting to that, Congress doesn't have the power under the Commerce Clause. So go down those ladder steps. And the ladder step right below really the major question doctrine is, can OSHA do this under their ETS powers, their emergency temporary standards? That's what ETS stands for. And so if you think that that's actually where some of your medium justices are, then you need to argue that. So David, I'm curious what you thought of

the opening statement. Well, I, I love the opening statement because I thought it went straight. It just went straight in. It went straight in and it went straight into the key, the key question. And which was, I think a good way of describing this is, it's just too much. It's too big. It's too far. And he starts very strong. I'll read the first couple of paragraphs. OSHA's economy-wide one-size-fits-all mandate covering 84 million Americans is not a necessary,

indispensable use of OSHA's extraordinary emergency power, which this court has recognized is narrowly circumscribed. There's a lot in that paragraph. Okay. So when you, when you, what that paragraph to me is signaling is, look, the core of this argument is that whatever the line is here on what OSHA's authority is, this is just over that line. And it's just too far. And I'm not going to, you know, there's a point where later on, I just love this response from Scott so much because it hit something that I've talked about on this podcast only 8 million times. And he just answered, I think, perfectly. But I think that first paragraph, and then he comes in with just this really key factual assertion. Just three days ago, the U.S. Postal Service told OSHA that this ETS's requirements are so burdensome for employers that the federal government is now seeking an exemption from its own mandate for the Postal Service. That's because

OSHA's economy-wide mandate would cause permanent worker displacement rippling through our national economy, which is already experiencing labor shortages and fragile supply lines. So right there, he hits the two big themes. Too far. How do we know it's too far? The federal government's seeking an exemption from the federal government's mandate. One part of the federal government, the Postal Service, is seeking an exemption from another part of the federal government's mandate. And so I thought that was an incredibly effective way. And what that tells you, and this is something that I think for younger lawyers out there, it's really important to understand. You're always representing a client far and above the idea that you're representing a cause. So when you're walking into a courtroom, what you're doing is you're trying to provide relief

for your client. And if you're sitting there thinking, what I must do is win one for the cause, you will often be too ambitious. You'll often look at winning arguments that would provide relief from your client as unnecessary compromise or climb down from the ambitious goals that you've set for your cause. And what this is, this is walking in and arguing on behalf of a client. This particular rule is too far and it needs to be stayed. And there's some interesting elements in here within the argument that I think are really fascinating that I think would actually give, if the rule is stayed, would give the Biden administration a roadmap for other rules that it could promulgate, which is very interesting. So that was my

assessment right from the get-go was, okay, what we're doing here is we're not trying to, you've got a runner on third and a home run will get them home for sure. But that's harder than like a sacrifice fly or a sacrifice bunt or a single, you've got a runner on 30s trying to get the runner home. And to me, that's when you're walking in there and you've got a clear goal, you've got a clear path to it. And what you're doing is you're just laying out that roadmap for the court right now. And you're not saying to the court that you have to go all the way down a particular constitutional road to rule for me. You can just walk two steps or a step and a half. And I went. That was my assessment as soon as I saw that. And then also based on what

we had talked about before about some of the strategic choices going in. It's an interesting balance, as you said, because cause wise, that's major question doctrine. Everyone wants this court to lay out what the major question doctrine is because it's seen as sort of the next avenue to rein in the administrative state. 18, you know, everyone was talking Chevron doctrine. It was so hot right now. Major question doctrine is the Chevron of 22. And so to have the opportunity to go define major question doctrine at the court is really tempting and to push them on that. But on the other side, I thought it was interesting that there's a difference between winning the case and representing your client's interest. Because, right, you could win the case and concede everything that is not, you know, a vaccine or testing mandate. But they asked Scott at one point, I believe it was Barrett, what if it was just masking? And Scott says, no, I don't think OSHA has that power either. You know, that shows you the difference between, I think, winning the case and your client's interest.

And I mean, this case, David, was all about the hypotheticals. And I will tell you something that I got very wrong. Not very wrong. I got wrong in the run up to this case. Not very well. I got wrong in the run-up to this case. I felt like, having listened to so many of these arguments over the COVID time, that we were going to get the Kagan cascading hypotheticals

where she's like, yes or no only, no other words can come out of your mouth. Right. That she did in Brnovich, the Voting Rights Act case with Carvin. She did it in Our Lady of Guadalupe on which employees are covered with the religious exemption. And it was so effective when she did it, especially in these hypothetical cases. And I thought, my God, I'm not sure there's ever been a better hypothetical-based case than this one.

So what will those Kagan hypotheticals be? And fascinatingly, not only did she not do the cascading hypotheticals, I was shocked, frankly, by how few of the hypotheticals came up at argument and how they kind of came up in this very couched way. I mean, the big ones for me over the last week or so were the mask question. What if this were just a mask mandate? Could OSHA do that? That did come up, as I said, Barrett asked it. And then on the other end of the extreme, what if this were Ebola?

You know, where death, you know, I'm making up the Ebola numbers. I think it's like 30% of people who contract Ebola die. Just ludicrously high. Yeah. Super, super high. Could they do this then? Like, does the does the risk from COVID factor in? And then there was all sorts of other hypotheticals in between. And no, again, very surprising, particularly with Scott's argument. Scott's argument was very on the legal side. The ETS power versus major question doctrine. Ben Flowers, the Ohio SG, they divided time. So they each got about 30 minutes of argument time and the solicitor general got about an hour. So yeah, the argument was two plus hours long. His was much more, I would almost call it the political argument, David. And that for listeners of this podcast, frankly, the Ben Flowers, Ohio SG argument was more fun. So let me read some of the back and forth from the Ben Flowers

argument. In trying to define what's the workplace issue with OSHA, like why OSHA? Ben, every workplace has been affected, but that doesn't mean the work is arising from the workplace, the risk. To take another example, if we look at terrorism, there's some risk of terrorism that we face when we wake up in the morning. We face it at home, in public, and at work. And we adjusted to that after 9-11. If you see something, say something. Ideas like that. Now, the fact that you face that risk when you go to work doesn't make it a workplace risk. It means it's an ever-present risk. Kagan, I would think that workplace risk is about the greatest, least controllable risk with respect

to COVID that any person has. You don't get to, you know, she's like, you can decide whether you go to a baseball game. You can't decide whether to go to work. You don't get to, you know, she's like, you can decide whether you go to a baseball game. You can't decide whether to go to work. You can't decide who you're working with. You can't decide how close you have to sit next to them. And so that was an interesting question that this turned around, just as Thomas also asking about how we define what that workplace risk is. And I found that conversation interesting because it seems really easy if you're just thinking about it for the first time. But if you're an advocate who had to go in and answer that question, you are on a tight rope for your client, of course, because it's, uh, this is ever present, but at work when you

can't leave and it's eight hours in an unventilated space or a meat packing plant or an assembly line as the chief justice brought up um clearly there could be heightened workplace risk um and so that was one of the questions that i thought fell along that like hypothetical line And look, the answer from Ben and Scott was, yep, if they had defined this by the industries, the types of workplaces, maybe they could have done that. But they didn't here, so who cares? The Sotomayor exchange, the Sotomayor exchanges with Ben, the Solicitor General for Ohio, were, poof, they weren't great. Now there's the one that's gotten the fact check, the 100,000, we have over 100,000 children, which we've never had before in serious condition, and many on ventilators. That's been fact checked. It's wrong. It's about 3000.

The CDC director was on Fox news and even said that it was wrong, which was a little surprising, frankly. Um, but that's not what I find interesting. Frankly, I think people can misspeak all the time. I've just not that worked up about it, but this one, David Sotomayor. So if it's within the police power to protect the health and welfare of workers, you seem to be saying the states can do it. But you're saying the federal government can't, even though it's facing the same crisis in interstate commerce that states are facing within their own borders? I'm not sure I understand the distinction. Why the states would have the power, but the federal government wouldn't. Flowers. The federal government has no police power, if we're asking about that.

Justice Sotomayor. Oh, it does have power with respect to protecting the health and safety of workers. We have, except the constitutionality of OSHA. Flowers. Yes, I took you to be asking if they had a police power to protect public health. They absolutely. Sotomayor. No, they have a police power to protect workers. Flowers. I would not call it a police power. I think the Commerce Clause power allows them to address health care. That's a concerning exchange. Yes, that was very interesting. And for those who are saying, what on earth is Sarah reading and why is that remotely interesting?

The short answer to the question is this, is that the federal government, the constitutional structure of the United States is that the federal government is a government of enumerated powers. In other words, it has only the power that the constitution gives it. So you could think that something is the best idea in the world, the greatest public policy ever created by the mind of man. And if you walk into Congress and say, can you pass the greatest policy ever created by the mind of man in a functioning constitutional republic? The first question a member of the federal government should ask is, do I have the constitutional authority? Is this one of our enumerated power of regulation of interstate commerce, which is a pretty, and it's been interpreted to be a really broad power, but that's still in the world of enumerated powers. Police power, on the other hand, is something that the states have. And a good way of thinking about the police power is to say, whereas enumerated power says, I have only the power

the constitution gives me, police power is kind of the reverse of that it's like i'm the sovereign and i have all of the power of the sovereign except that power which is withheld from me by my state constitution by federal law by federal statutes and so states traditionally have the police power they have the power of the sovereign in that traditional sense that's circumscribed by the constitution whereas the federal government has only the power of the sovereign in that traditional sense that's circumscribed by the Constitution, whereas the federal government has only the power given to it by the Constitution. That's a big, big assertion of federal power and a transformative way of looking at the Constitution of the United States, a novel and transformative way of looking at the Constitution. So that exchange was weighted with meaning about the structure of the United States government. And look, I'm very sympathetic to the argument that the 14th Amendment fundamentally shifted the constitutional balance between states and the federal government,

which is traditionally an argument on sort of judicial liberalism, maybe even judicial activism, living constitutionalism, sort of all stems from this 14th Amendment argument in some ways. This wasn't even that. This was just, there is no limited powers in the federal government anymore. It's just all things to all people. Wow. Interesting. Okay. So another moment in the Ben Flowers side of the argument that, David, I thought you probably found interesting was the grave danger math logic. It was a little bit like an LSAT question.

So bear with me here as I try to explain this because it got very into the math and numbers in the argument as well. But Justice Thomas asked about it. Sotomayor and Kagan got into it a little bit as well. So let me try to explain this. OSHA can regulate a grave danger in the workplace. Nobody was disputing that COVID is a grave danger in theory, that it fits the agent, chemical, whatever those words were that we've talked about before, David. that it fits the agent, chemical, whatever those words were that we've talked about before, David. But there's an inconsistency problem because OSHA says that only unvaccinated workers,

COVID only poses a grave danger to unvaccinated workers, not vaccinated workers. That's why it's a vaccine or testing mandate. The problem is that by the numbers from the U.S. government and lots of other organizations notwithstanding, unvaccinated young people are less at risk from COVID than vaccinated old people. old people. Therefore, the definition of grave danger, if you actually, you can assign numbers to it. It's not like most things we do in statutory interpretation where it's like feelings and thoughts. We have numbers for this. And so it's illogical that the grave danger, something that is a grave danger for 18-year-old unvaccinated people, we can assign a number to what the possibility of them getting seriously ill, hospitalized, or death is. That number is less than the vaccinated 60-year-old. And so how can grave danger mean anything then? It was a real problem, I thought, for the Sotomayor-Kagan line of

argument. And then, of course, there's the vaccination. What does it do? And the CDC director, since the argument on Sunday, came out and said that vaccines do not appear to prevent transmission of Omicron. Now that was sort of assumed, but we didn't have the CDC director saying it on Friday for this argument. I can assure you, well, no, that's not true. The postal worker thing, like I forwarded to husband of the pod when that news story hit that the US Postal Service was asking for an exemption from the mandate. And I mean, he knew what he had in that. The CDC director saying the vaccines don't prevent transmission also goes to the grave danger question, because then the grave danger is not unvaccinated workers giving it to other unvaccinated workers. It is only the danger to themselves of getting COVID because now

vaccinated workers can give it to other vaccinated workers. And so the vaccinate or test mandate isn't, that only applies to unvaccinated people. So you don't have to test if you're vaccinated. It becomes even more illogical. And it shows you how difficult it is, I think, to address a science-based problem because as the variants change, the science changes, but also just as we learn more, David, this changes. And so they're trying to use this emergency power

and things are changing underneath their feet in the meantime. Yeah. To me, this was the best exchange. This is the one where I was really like, this is the moment because there's a couple of points I want to make with this exchange that I think are worth that I think are interesting. So this is Barrett and Scott. So, Mr. and forgive me for reading just a little bit. Mr. Keller, I want to return to the discussion you were having with both the chief justice and Justice Kagan earlier about whether the vaccine or test requirement addresses where it's necessary to address a grave danger in the workplace. I think you would be hard pressed to contest the chief's point that there are some workplaces in which the danger to employees is different than what they face out in the world. Because to give some background, the question is, is OSHA really regulating a workplace problem or is it regulating an out in the world problem?, because it can't regulate out-in-the-world problems. It can

regulate workplace problems. A meatpacking plant or healthcare, the dentist, for example. I think what you're saying, well, I think this is what you're saying, and I want to make sure I understand it and that I'm correct, is think you're saying is that even if there are some industries or some people who would face a great risk, and this might be necessary to address that risk, if OSHA had adopted a more targeted rule, you might not be contesting that or you would not be contesting that the problem here is its scope or that there's no differentiation between the risk faced by unvaccinated 22-year-olds and vaccinated 60-year-olds or industries. So is that the distinction that you're making? You're not

disputing what Justice Kagan said, that, you know, there is a grave danger and that some circumstances this rule might be necessary, but just the scope of it makes it different. And this is the answer. And this is an answer I wish more advocates would give in these kind of hypothetical situations. That's right, Justice Barrett. I want to be very clear about this. Whatever that line is, this ETS is so far beyond that line. So essentially what that exchange is saying is, look, there are workplaces that present unique dangers. I am not in this litigation contesting the idea that there can be regulatory power brought to bear to address those workplaces that present unique dangers. This rule is not that. And the way when he said, hey, there's a line, but it's very far beyond that line. What I liked about that was he was also not saying, here,

I'm going to draw the line for you right now. Here, I'm going to craft the regulation for you right now. He's saying, no, we're not. And this is another thing that I thought was interesting. If you're somebody who's really your objection to the OSHA mandate is kind of smug, it's a, you're mounting a bunch of legal objections, but it's really a pretext that you don't like vaccine mandates, period, full stop under any circumstance by any authority. This was actually not the oral argument for you because in that oral argument, Scott is saying, hey, states could do it. And just right out there, states could do it. That's the Jacobson case, right? So states can do it. He's even saying there are certain industries that are ripe for a vaccine mandate.

He said healthcare workers, which is interesting because the very next argument dealt with healthcare workers. Now, just by Scott saying healthcare workers doesn't mean that whatever mandate is crafted is going to meet all of the various legal requirements of the Administrative Procedure Act, yada, yada, yada. But I thought that that was interesting. This was not, it should be emphasized, an anti-vax oral argument. It was not. Oh, and they cared very much about that, obviously. And even in his opening, talking about how many of the businesses that they're representing

through these trade associations have incentivized vaccines, like financial incentives to get vaccinated, et cetera. They're definitely not anti-vax. They didn't want to be anti-vax. And it's probably why the Supreme Court took these two cases of all of them, because they were in some ways the least anti-vax of the filers, the state of Ohio representing the states, which they were like, yep, states can do this. Thanks. You know, please, police powers. And then also these businesses that were like, vaccines are the best way to combat COVID-19. It will cost billions of dollars. We can't even get the tests. Like you're saying it's an or testing. Nobody can get tests right now. What are you talking about?

You know, on the workplace risk, when it comes then back to Ben, I mentioned that, you know, he compared it to terrorism and this risk that was out there every day. That wasn't maybe my favorite comparison. I'm not... But he gets back to the question with Breyer later

and I think takes a line. Wait, is that a legal term of art? Yeah, that's my turkey impression. And here's what he said. We accept the line that's been drawn for every important industry that simply the fact that a risk exists outside the workplace doesn't mean you can't address it when it's inside the workplace. What we dispute is the idea that a risk that is ever present in all places can be regulated simply because it's also in the workplace. And so you can regulate, to be clear, OSHA could regulate COVID-19 in the workplace when the employer does something like packing

individuals very closely together in a poorly vented area that enhances or changes the nature of the risk. As in, it needs to be the ever-present risk can't itself be the OSHA reasoning, which if you actually go through like the 60,000 pages that OSHA put out, that is what OSHA said. They did not really go through and define that OSHA risk much differently. What he's saying is that just can't be how they define it. But if they say, yeah, there's this risk everywhere, but when you walk in the workplace, the risk changes because of the nature of the workplace, either the nature of the industry, the way that employees are being put together.

Now, look, I think OSHA has a good answer to that. Yes, it turns out that every workplace enhances the risk of getting COVID-19 because you're in there for a long time and you can't ventilate it. And look, the response to that is then you should have had different exceptions because right now only, what was it, 15% of landscapers were exempted. Because if you ever walk inside to like punch your time card, you're not exempted to be honest, because when it comes to that kind of fine line drawing, that's not going to happen. I think you're either going to have this wasn't necessary. And by the way, interesting side, little legal nerd stuff here in the OSHA ETS power, it has to be necessary. And the OSHA regular power, it has to be reasonably necessary. And so you have to sit there and tell the court, what is the difference between reasonably necessary, which presumably is somehow a lower bar than necessary?

lower bar than necessary. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. Hot chicken in the window. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect.

Okay, so let me ask you this because we got to talk about CMS and post-argument and all of that. got to talk about CMS and post-argument and all of that. Do you think that the court will decide this on major questions? Or do you think that major questions will be a subject of a concurrence? Because I'm a little bit skeptical that this will be decided on major questions. I think major questions is a concurrence with four votes. I think they're going to come up one shy. I could be wrong, but I think they've got Thomas, Alito, Gorsuch, and Kavanaugh with a major questions opinion. I just think that Barrett and the chief don't need to reach it and therefore are not going to reach it. need to reach it and therefore are not going to reach it.

Interesting. Okay. And do you feel confident making a prediction knowing that by the time the podcast comes out? You know, most legal writers have said that the vaccine or test mandate looks like it's in trouble. I think that's right. I think that was right before the oral argument. I will say, though, you always learn something in oral argument. I thought the oral argument was far more skeptical of the husband of the pod case than I thought going in. going in. Justice Thomas opens it, and maybe that's colored my whole opinion of it, but Justice Thomas opens on what's necessary, because I'm looking at McCullough v. Maryland, and necessary just means proper, basically. And you're saying necessary means something way, way different and this high level. And you're like, what? Huh? Justice Thomas? Oh, no. Now, through the course of the rest of the argument, I think it is clear that Justice Thomas is quite skeptical of the mandate. But, you know, the justices are older. COVID-19 presents a unique challenge for them health wise.

They and the court obviously have a testing mandate, a vaccine and testing mandate. Actually, I don't know if they have a vaccine mandate, maybe have a testing mandate a vaccine and testing mandate actually i don't know if they have a vaccine mandate maybe just a testing mandate um and so to say like well we're going to institute this for ourselves you know testing for me but not for thee um i think they were very they're more open to osha than i thought they'd be. I'm going to completely agree with you and, and tell Scott earmuffs on this because I, I read the commentary before I read the arguments. Ooh, interesting. So I was getting ready. I couldn't listen to the argument because I was getting ready to head out on a weekend trip to center Hill Lake with my friends from college. Great weekend. So I didn't

get a chance to read the arguments until yesterday. So I read the commentary. I read Skoda's blog, you know, Volokh conspiracy, all that, you know, Cato and around, went on the rounds, read the, you know, the New York Times summary of it, et cetera. And it sounded like before I read the arguments, oh, this is a slam dunk. Then I read the arguments and I thought, man, it was smart to focus on this is just too far and not to center all of this around major questions, for example. I would say more than a layup, I would compare this to a free throw. I think they made it. It's likely, you know, you make most of your free throws. It's important that you're good at free throws, but free throws can miss. This was not a layup argument the way that I think some predicted it would be. And the way that,

yeah, I agree. Like some people writing about this afterwards is like, oh, mandate's gone. And I'm like, yeah, I thought that too going into this, but I don't know. Yeah. And I'll tell you, I think there's a dynamic in play here that is, I think a lot of the people who comment and write about these issues are spending way too much time on Twitter and getting high on their own supply of their, you know, oh, you know, this is way, way too far. There's no way. And, you know, as I'm reading it, I'm reading, you know, this is an oral argument conducted with a whole bunch of people who spend zero time on Twitter and are not up on the latest sneering, condescending dismissals of this argument or that argument, but are deciding it in the middle of a massive

pandemic. And where the pandemic just so happens to be hitting record positive test rates and record positive cases right during the oral argument, which is wild. And so what I thought was this didn't, I still think, I think the free throw versus layup is a great analogy. It's a perfect analogy. I might even extend it to wide open three, which you're going to expect an NBA caliber player to hit, you know, but it's still iffy. And so I put it this way, going into the argument and after reading the summaries of the argument, I thought they're getting the stay. Then I went in and I read it myself and I thought, thought this is a lot closer so i may i still think they get the stay but i'm shakier on it than i was to be honest so can i go through a few meta parts of the argument yeah please like

things that aren't specific to this mandate case so um well one this is specific to the argument but the listening to it versus reading it stuff that happened so there was the sotomayor fact check that a bunch of people did fine but there's then the gorsuch one yeah that was interesting it was like really just funny in some ways because it was like well if sotomayor made a mistake, we need to make sure that, you know, someone on the other side made a mistake. And I heard it, Gorsuch say, when I was just listening, flu kills, I believe, hundreds of thousands of people every year. And I was like, huh? Yeah.

But, and in fact, the official Supreme Court transcript says, flu kills, I believe, hundreds of thousands of people every year. But I then went back and listened to it many, many times. And what he said is flu kills, I believe, hundreds, thousands of people every year. And because the English language is what it is, the word of gets dropped when we talk all the time. And so you can fill in the word of really easily in your brain. And speaking of filling in very easily in your brain, at the end of the argument, Scott gave the rebuttal and it ends with, we would respectfully request a stay of this unprecedented sweeping ETS before Monday. But that's not actually what Scott said,

because he slipped. What he said was, we would respectfully request a stay of this unprecedented sweeping. Are we, we might get an explicit rating for this. He, he like slipped over the word and he said of this unprecedented sweeping ass ETS. So it's like sweeping S, but then he needed to say ETS, not S. And so it was sweeping S ETS. So it

sounds like sweeping ass ETS. And I thought it was really funny and laughed really hard. And then some of his like, you know, buddies from law school also heard sweeping ass ETS. Um, but David, this brings me setting aside, uh, that little fl, brings me to sort of a larger thing here, which is we had not only the advocates preparing in two weeks for an emergency oral argument, but you also had the justices and their clerks preparing for an emergency oral argument in two weeks. And I don't like the dunking on Sotomayor. Look, I'm actually fine with it on the police powers for the federal government. Because that's basic. Yeah, that's yeah. That wasn't misspeaking. That wasn't having some facts like switched up in your head. The 100,000 children in serious condition, I actually think shows David. The Supreme Court listen to us.

We said they should do more oral argument. I think this also showed the drawbacks of that suggestion. And I think the Sotomayor thing is a good example of it. Sotomayor, you know, I'm sure she mixed that up with some other number that her clerks put in front of her. And because they didn't have months to prepare for this oral argument, you know, she said something wrong. It's okay. Believe me, folks, she is well aware that she said it wrong now. So it's not that it will cause some long-term damage, but I think that then the changing landscape on the ground, the Postal Service asking for the exemption, the CDC director saying that the vaccines don't prevent transmission,

all sort of undercut the idea that this was a good idea. I don't think there was another way to do it. I think this was incredibly important. They needed to decide it on an emergency basis. Having oral argument was helpful. But for the shadow docket critics that we have been, along with others who suggested just have more oral argument, there were to showcase the limitations of that. No, I would agree with that. And writing in the Volek Conspiracy, friend of the pod, Jonathan Adler, said the caliber of the questioning by the justices was not up to the usual standards, which I thought was an interesting observation. I didn't, when I read it, I had somewhat of the same sense, but, you know, maybe not as much as Professor Adler. But yeah, I think you're exactly right. This is very technical stuff in a very fluid environment where what we are understanding about the virus is changing in real time. I mean, this Omicron wave is fundamentally changing so much about everything that we know and understand about how to respond to COVID from the last two years. It's different, seems to be different in severity, seems to be different in

transmissibility, in the symptoms, it even seems to be different in some ways in nature from some of the other variants. And so all of this is unfolding. All of this is incredibly complicated and it's happening in real time with little prep. And so this is one of the drawbacks, but what other option do you have in a situation like this? You have a major national policy that's going into effect immediately or almost immediately, and you've got legal challenges to it. You got to do it. You have to do it. And what's often forgotten is that technically, this isn't actually deciding the case on the merits. True. Technically, this is all... But this is part of the beef that people have with the shadow docket, because none of the

shadow docket cases are deciding it on the merits, but it does decide it on the merits. Right, right. Yeah. I mean, in all practical sense, you're saying whether they have a likelihood of success on the merits a lot of the time. And therefore, the lower courts are like, okay, well, I guess you're telling us they're going to win. So we are supposed to make them win. Well, and if you're OSHA, if a stay is granted, which is not a final determination, it's just a likelihood of success in the merits, does OSHA then go, aha, what we're going to do

is we're going to go all the way back and then prove that you're wrong court in your original determination? Or do you say is the shorter, faster course of action to say, okay, if we're unlikely to succeed on the merits of this policy, is there a different policy that the court has given us a roadmap on in the opinion? And do we do that? I also think, by the way, that when we talk about this being, I like your example of the open three. That's a better one than my free throws. So I'm going to adopt it and pretend it was mine. I think that part of the reason why it's a three

is because you do have frustration building at the court, the chief, obviously, but I think even Kavanaugh, perhaps, that administrations now, and not just this one, but I can point to quite a few from this one, do things that they know don't pass legal muster, or at least they highly suspect don't pass legal muster, knowing that the court will have to enjoin it. And then the political branch gets to say, oh, well, we tried, but that Supreme Court, they're the worst, right? I'm thinking here, of course, of the eviction moratorium. I'm thinking of this. DACA is a good example. God knows the Trump administration did it. Census. Yep. And there is going to, I think we already see it with Congress, the court frequently saying now, nope, Congress has the power to fix this. You don't have the power to

do this thing. So therefore we're going to stop you from doing it and Congress needs to do it. And then Congress does nothing time and time again. But I wonder at what point on these closer calls, they're going to say, fine, you were counting on us to stop this Biden administration. We're not going to. We think on the merits, you know, this probably doesn't win, but we're not going to issue a stay for these other reasons. Set aside the likelihood of success on the merits. And you are going to be the ones crippling the economy, billions of dollars that will lead to inflation. All of these things that you think we were going to stop from landing at your doorstep, it's not our job. And in fact, in talking about the administrative stay, this idea that they would simply,

the court would ask for more time, Alito asked this very pointed question to the solicitor, the U.S. Solicitor General, Elizabeth Prelogger, and says, so if we issue an administrative stay in this case, are you going to say that the court is killing people every day? Right. And she says, well, you know, a little taken aback by the question. It sounded like perhaps. But his point was and the chief jumps in on this. Now, wait a second here, you guys, you issued this. Oh, you know, the president says it in September. Fine. OSHA takes until November because that's how long it took to write.

Fair enough. OSHA issues this thing November 7th, something like that, and then doesn't have it go into effect until, well, today. And so they had their own administrative stay of sorts while people were dying. And so Alito's point was, so if we ask for a couple more weeks to write our opinion, you're going to go out to the White House podium and say that we're killing people, even though you stayed and affect your own mandate for two months. And basically the Solicitor General had to say, yeah, that's what's going to happen. Yeah. You know, that's a very going to happen. Yeah. That's a very interesting observation

because one of the interesting things about the emergency docket cases is that when you're not deciding on the merits, there is an awful lot of judicial discretion to consider sort of the balance of equities. Public interest. Yes. And this is where we got into what we saw with Kavanaugh and Barrett not long ago saying, hey, we're going to deny relief because we're going to apply this interesting other standard that says, is this the kind of case we would have taken anyway? And you can't sort of short circuit your way up to us with the case we wouldn't otherwise take by making it on an emergency basis. Well, that's a kind of a made up standard, but the law allows for these kinds of balancing of equities in these preliminary proceedings. And so to say, well, since this is preliminary and we're not making a final determination on the merits,

we're going to let it go into effect for various equitable reasons, is an interesting response. I would be surprised if they did it. So again, as I said, I'm still, after reading the oral argument, still inclined to believe that the mandate is going to be stayed. I'm less confident of that than I was. And I thought Scott did a fantastic job getting the court to focus specifically and again, returning again and again to this notion of like, it's just too far. This is too far. We have, there are circumstances where you can draw something narrowly that absolutely fits the problems that exist with coronavirus in a workplace, but it's not this. But I'll tell you, the court seemed more open to the mandate than I would have expected.

And I think your determination and your diagnosis of some of the frustration is very interesting. Okay, last thing, the remote arguments, David. So the Ohio Solicitor General argued remotely after testing positive. The Louisiana Solicitor General argued remotely as well for the second case, which we haven't gotten to talk about yet. I know, we need to talk about it. At least we need to say something about it. This will just be this will be a little bit of a longer podcast. Sorry, guys. I'm curious if you thought it hurt them or helped them.

You know, both of them triple vaccinated, which is interesting. And then still test positive. Also, as we saw from the Ohio Solicitor General, his office put out a statement saying that he had tested positive weeks earlier with COVID and was simply one of those people who's still testing positive weeks and weeks later. Also showing, by the way, the under and over inclusiveness of the tests in some ways. It appears that people can transmit the virus before they test positive, which makes it not that helpful for the workplace, of course. And then to continue testing positive two, three weeks, I guess you can test positive 90 days later.

That seems a bit we'll see, you know, not ideal. Here was the interesting thing, though, David, and I have it's maybe not gossip so much as conjecture. was the interesting thing though, David, and I have, it's maybe not gossip so much as conjecture. Justice Sotomayor also argued remotely and there was thoughts about why that might be. Here's my conjecture, David. It is not that Justice Sotomayor also tested positive for COVID. Word has it she was in her chambers. She just didn't go into the courtroom. But rather that she genuinely feels that this is a particularly heightened threat to her. She has diabetes and that she has been frustrated that she's been the only one in the courtroom during oral arguments this past semester, if you will, wearing a mask, that she thought the arguments should have gone remote given Omicron and these just spread. And as I said, that you can test negative right before you test positive and that you will still be able to transmit the virus during that time when you're testing negative.

And so interestingly, if you look at that sketch of my very sexy husband on the front of the Wall Street Journal, you will see that some of the justices are wearing masks for the first time. Some of them aren't. So Justice Gorsuch did not wear a mask the whole time. He was the only one, though, who walked in without a mask. I think all the justices, Scott told me, removed the mask while they were asking questions, except maybe Justice Kagan did not. And in the picture on the Wall Street Journal, you have Gorsuch, Thomas, and Alito not wearing their masks, which I thought was an interesting moment to catch on the sketch in terms of 3- three three enos of it perhaps um now gorsuch of course

as i said was not wearing a mask the whole time as you can like kind of see maybe in the sketch alito might be asking a question while his mask is off and thomas maybe just finished asking his question uh remember when they go in the order of the justices, that is the order, right? It would be Thomas, then Alito. Although if you go to the transcript, the chief actually kind of messed up the order of questions for Scott. So Scott is at the podium. Anyway, it's interesting to think about which moment exactly is being sketched right there when you then go to the transcript. But I think that Justice Sotomayor has a point here, if that is her point. Again, it's just conjecture on my part. If she has a heightened risk, asking that the arguments move remote while Omicron is at this peak moment, I don't think is totally unreasonable, especially

when we know the limits of testing. Asking your colleagues to wear a mask when you're sitting that close together, not unreasonable, but very interesting dynamics at the court. And I thought it came through in the argument, Breyer and Kagan, particularly breathless in some of their questioning and angry sounding. Yeah, I agree with that. And you know, what's interesting, so there's so much, again, all of this is unfolding while the facts on the ground in the real world are evolving at lightning speed. So not only do you have huge numbers of people testing positive for COVID, you also have an absolute scramble in many parts of the country to test. You're sitting in line for hours.

Some people are. People are struggling to find these sort of less reliable at-home tests. It becomes difficult to... My wife went to go get a PCR test and she ended up sitting in her car for, I think, six hours before she finally got a PCR test. Yeah, yeah. So you're in this environment where the testing component of it, which was sort of seen as the less restrictive alternative. In other words, it's a masking and testing mandate with a vaccination opt-out, basically basically is to opt out of masking and testing

the the masking and testing part now is harder in many ways than the vaccination element of it and so it really does so how does this cut like this is the thing that's so interesting about this and why the argument to me isn, the outcome is not as easily predictable as a lot of people are saying is there's a lot going on right now in the real world. And a lot of that sparkling Twitter certainty that you see just doesn't translate offline into the actual arguments themselves. And so to me, I thought, huh, this is going to be very, very, very interesting in its outcome. And I felt the same way about the CMS argument as well. Now, this is the- Wait, real quick, before we move to that, sorry, one other thing. Sure, sure, go for it. Speaking of your Twitter point, there was a guy who tweeted like, of course, one advocate for each of these

arguing against COVID restrictions and vaccine mandates tested positive for COVID and like dunk and got 20,000 likes and all these retweets. And I was like, I'm not sure that what you're saying is helping your argument very much. The whole point is these people have been vaccinated, still got COVID. Sotomayor's remote as well. It points out the irrationality to some extent of the OSHA mandate now, but I will say also points out why you defer to a

politically accountable branch, the executive branch here, not OSHA, obviously, and why the court may not want to get involved in it. And so it was exactly the synthesis of your point. Twitter is so sure about something. And in fact, it undercuts their argument, but also maybe bolsters part of it, but not the way that they think. Exactly.

And just like incredible to me that, yeah, that the the the lengths that we went to in our house to make sure that Scott tested negative were not reasonable, frankly, to the threat. The argument probably should have been remote, given just how widespread Omicron is in DC and Northern Virginia right now. Um, you know, not allowing Scott to like leave the house and dressing him in Saran wrap, um, when he went in the car and sat in the car while I went into the grocery store, probably not needed, uh, given what we already know about the testing. And of course I will just tell you, since we, I told you on Thursday that we were waiting about the testing. And of course, I will just tell you,

since I told you on Thursday that we were waiting for the results, I mean, it was nerve-wracking. Oh, I'm sure. And then they came in around just an hour after we stopped taping, and Scott walked in and said, Ohio tested positive. And I was like, you, all I care about is you. Yeah. Yeah, exactly. Tell me about you. Yeah, I know. I know. And, and so there should be a lot of humility in, in how we're assessing what's going forward. And, and then one thing I want to channel for a moment, this is a, um, got, and I don't have,

I don't have permission to share the, the specifics of this email, so I'm not. But I got an email from an insider on the other side of the argument, on the OSHA side of the argument. And I think the best way to describe it would be frustration at the prominence of the major questions doctrine argument, which is very very interesting and I understand it because I think what's interesting when you're talking about administrative law is what those of us who are sort of like me more on the separation of powers, we need to revitalize non-delegation, we need to, you know, there's, we need to revitalize the sort of concept of the federal government as enumerated powers, jam the executive back into its box, revitalize Congress. This hasn't always been, Sarah, the conservative legal position. Chevron, for example, this is something that Scalia, the Chevron doctrine is something that Scalia had for much of his career endorsed.

That was seen as actual judicial modesty, that the Chevron doctrine was judicial modesty. It was saying, wait a minute, we're going to stay out of these ambiguous arguments. I'm going to stay out of this ambiguous language and defer to these political branches of government. In this case, the executive branch is a political branch. And, you know, for example, moving aside administrative law entirely, Employment Division v. Smith, cue ominous music, which I really dislike. Again, Scalia opinion. This is a deference to the government in its assessment of when to grant or not grant religious exemptions from generally applicable

policies. And so I get it. I understand. And I also think it's interesting when it comes to major questions, this actually reflects an emerging split on the right. There's a lot of people now on the right, sort of more in this common good originalism side of things, that I would say are not at all excited about undermining or limiting the administrative power of the executive branch. They would be oh so very happy to have the executive branch exert a great degree of power so long as they're running said executive branch. So I do think it is interesting to sort of hear from the other side. This is, wait a minute, there's some reversal going on here. And is there something else going on other than we have a better understanding,

and this is the proper understanding of the Constitution, or is there some political aspect here that people who feel like they might not be able to get presidential majorities now want to be able to limit the power of the president to a much greater extent. Is that what's going on? I think it's worth throwing out there the opposing view of the reemergence of real focus on administrative law through major questions, through questioning Chevron, through non-delegation, et cetera, et cetera. So I just wanted to toss that out there. Well, here's a consistency shout out. The last time that Husband of the Pod was in the Wall Street Journal, if you will remember, David, was in his op-ed about nationwide injunctions,

and that despite many conservatives saying nationwide injunctions were the worst thing ever during the Trump administration, Scott was like, well, actually, I don't know, they kind of serve an important purpose. And then he goes to the court to argue in favor of a nationwide injunction. So there's some consistency for you. Well, and so let me ask you this before we move on to CMS. Again, sorry, this is a long podcast, but we got a lot to cover. Tell me about the denouement after it's over. How does Scott feel? Actually actually this was really funny and worth a second so uh the so as they leave the the courtroom they go back to the lawyer's lounge and in the walk to the lawyer's lounge the like door to the gift shop was open and so they turned to the you know

officer like moving them and they're like hey is the gift shop open they. And so they turned to the, you know, officer, like moving them and are like, Hey, is the gift shop open? They like pop their head in and like, yeah, gift shops open. They're like, really? So, I mean, just back up for a second. Like there's justices not attending oral argument. There's this testing thing. Everyone's wearing a mask and freaking out, but the gift shop is open in a building, not open to the public. So they're like, well, hell. So they went in and, I mean, bought everything in the gift shop as far as I can tell. So the brisket now has a little tiny little toddler-sized Supreme Court gavel. Outstanding.

Also, a little teddy bear wearing a Supreme Court of the United States shirt. That's pretty cute. But I guess the Supreme Court gift shop is filled with turtle related stuff. So I got a stuffed turtle with a Supreme Court T-shirt, which I am going to assume is that the Supreme Court's quite slow, except in this case. except in this case, but the generally justice is slow or something. I'm, I'm not sure the metaphor is so great, but I love turtles. I do have quite a little turtle collection. And so I was very pleased if confused with the turtle stuff, um, from there, even though I dropped husband of the pod off because it was snowing brisket and I both got in the car that morning uh was very grateful that it was a safe drive because i did not wear shoes or a coat um but afterward steve his partner drove them both back i figured if they get stuck in the snow on the way back like not my problem um they had a nice

leisurely lunch um and you know what i will tell tell you, because of course, David, right? He had had to focus so much on this argument. He had some other client stuff that had really piled up and he had to get back to work right away. And we had a frozen pizza for dinner that night. No, no, no. I thought that since you guys are now cleared for COVID, you, you might go ahead and get the steak dinner or. I know we're thinking about it. We're, we're deciding now that we've like sort of missed maybe the peak Omicron wave. Do you then ride it out, stay cautious for another week and then maybe we get to miss it entirely. Or do we just treat this like the chicken pox? Do we go get Omicron? I don't know. Your situation was pretty bad though. None of us want what you had. Yeah. I think the Omicron thing is so prevalent that it really is a, do we,

do we self lockdown or do we just say in all likelihood this is coming? But I don't know. This is where we're going to get a lot of listener reaction. This is exactly and specifically what you should do. No, I mean, we were on the power curve of careful by Tennessee standards, I'd say, which might be by New York standards, the same as rolling around in a crockpot of COVID. But by Tennessee standards, we were on the power curve of careful, and it came sweeping through

our house. But thankfully, we're all fine. We're all vaccinated. We're all fine. But yeah, that's interesting. Now, how much do you come out from the bubble wrap? It's an interesting question. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has

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CMS. Okay. So this is not OSHA. We're now in a different Center for Medicaid. What is it? Medicare Medicaid Services. Yeah. And this is about whether they can withhold funding from places that do not have vaccinated

healthcare workers, basically. But it includes nursing homes that get Medicaid or Medicare funding, not just hospitals, lots and lots of places. So it's being treated as the same argument, but David, it's actually quite different in all respects because it's, they do obviously have the power to withhold Medicare and Medicaid funding as a general matter. The question is, can they do it here with this? Yeah. Yeah. And, and this one, you're talking here, the dynamics here are, I think, quite different. I think that when you're talking about CMS, the idea that does the federal government, the abstract question, does the federal government have the power in the abstract to say,

you're only getting this fire hose of hundreds of billions of dollars of federal money if you comply with certain, if you comply with vaccine requirements, vaccine mandates, et cetera, et cetera. In theory, I think that's about as much of a layup as you're going to have on this topic. about as much of a layup as you're going to have on this topic. But the in theory is different from the in practice, which is under the specific statutes applicable, are they broad enough and flexible enough to allow the Biden administration to impose this mandate? That's really the question there. It's not so much an in the abstract, can you place this condition on federal funding? I think that that is pretty darn clear, yes. It's much more specifically under the precise statutes and regulations in order, is that encompassed within those statutes? And I walked into that argument thinking,

I can easily imagine the outcome where the court stays OSHA and permits CMS to go into effect. And I'm still there. I'm still there on both of them. But oddly enough, I'm a little shakier on both of them than I thought that I would be when I read the arguments. Yeah, and remember that this, so the OSHA one goes up with the Sixth Circuit not staying the mandate. That's why the mandate's going into effect right now in some magical unicorn way. The CMS one comes in the opposite posture it has been stayed so the government was actually topside starts the argument um so which is a little odd because i also wonder whether the supreme court would have taken this and certainly on the emergency oral argument posture that they

did if those had been reversed if the the Fifth Circuit stay against the mandate, the OSHA mandate had stayed in place, and if this stay had not gone into place. Right. And I think on this one, I felt pretty sure that there's four. I could count, I think Roberts is pretty squarely on CMS's side as I was going through the oral arguments. So I could easily count to four for the government, for the federal government on the CMS case. It's the question is the one more, and that wasn't super clear from the oral argument for me, but it also was definitely not clear that I could count to five on the other side.

So I could count to four on one side, maybe to two or three on the other side, and it's up in the air for that swing vote. So that was my super quick and dirty analysis of CMS. Way too quick for the magnitude of the case. But hey, we have to prioritize the husband of the pod. And you know what? When we get the opinions, at least orders in both of these, maybe we'll jump in a little further on CMS. Yes, we will. Hey, David, one, an ending fun thing. Yes. Blunderbuss.

Blunderbuss. Oh, you've, you've, you've piqued my curiosity. I had never seen the word blunderbuss really come up. It's not like one of those legal vocabulary words that you use all the time that maybe we don't use in everyday language. But in the OSHA argument, blunderbuss was used three times. No, twice. Twice. And I just, I was like, what? A blunderbuss rule?

It sounds, it was like almost onomatopoeic, but I did not know what a blunderbuss was. Did you? Of course I know what a blunderbuss is. I did not. So tell us what a blunderbuss is and why it works in the sentence. This resulted in the vaccine mandate, a blunderbuss rule nationwide in scope that requires the same thing of all covered employees from the Ohio Solicitor General. He later, Justice Kagan says, I'm trying to figure out like why this is a blunderbuss approach when everybody knows from living their normal lives that every workplace has been affected by this, save for, you know, a few here and there. So a blunderbuss approach

would be very similar to saying, but more extreme than saying a shotgun approach. Because if you see, if you Google what a blunderbuss is, you literally see it will be, it looks like a musket, but the end of the barrel flares out like it's a trumpet. Yeah, it's like a tuba, like a tuba musket. Yeah, exactly. And so essentially what it's doing is it's firing shot and because of the flare of the barrel, it's inherently highly inaccurate. So you're spreading, you're spraying your shot even more so than you would for a normal shotgun. So a way of saying it is instead of a shotgun approach, a blunderbuss approach is even more expansive and inaccurate and sort of un-aimed than, think of it like this, rifle, aimed, precise. Shotgun, aimed, not so precise. Blunderbuss barely even qualifies under

the category of aimed. Well, I'm curious why the Ohio Solicitor General had that term in his opening. And maybe the wife of the Solicitor General of Ohio, who is friend of the pod, can tell us whether perhaps he collects antique blunderbusses in their home. I don't know. I was very curious about that. Yeah, that's a great word. I loved it. As soon as I saw the word blunderbuss, I was... It worked really well. And I learned a new word. I was pleased. Yeah, but it's interesting that you didn't know what it was.

So that tells me that of the nine justices, I wonder how many did. I guess I guessed. I mean, I did Google it. I mean, you certainly knew in context what he was saying. But no, no. I mean, I'd seen this type of gun before, but like in cartoons. Right. Yes. True. Yeah. Looney Tunes, the blunderbuss was a popular weapon of choice in Looney Tunes. That's right. And I definitely, they do not use the word blunderbuss in Looney Tunes. So I'm pleased with the vocab lesson. Yeah, no, it's a great, it's a great word.

And listeners look it up, blunderbuss, and you see that and you would think, why would anyone ever carry that? But that's, yeah, I'm glad you brought that word up. So, well, wow. Okay. We've got, you know, we were hyping this podcast properly. So, cause this was just a darn good podcast. We are hyping this podcast, but we got to hype more because any moment now there's going to be an opinion that we're going to be dissecting. So our couple of opinions that we'll be dissecting. So looking forward to that. So definitely tune in later this week on Thursday when we break down these opinions.

Until then, Sarah, tell Scott to get some rest. Well-deserved. No, me. He's on child duty. He's literally on child duty while we're doing this podcast because we don't have childcare right now. So yeah, no, he needs to take over all child care duty, take out the trash, shovel the driveway. Things have

piled up in his absence. I'm the one who gets to work, Scott. Yeah. Get to work, Scott. Seriously, do something with your life. Sarah, get some rest. Thank you. Thank you. And on that note, please go subscribe on Apple Podcasts. Please rate us on Apple Podcasts and tune in on Thursday when we'll be back with more advisory opinions. We'll see you next time. Lavender cream cold foam. Only this spring, only at Starbucks. Iced lavender cream oat matcha tea latte includes dairy.