Nat. Fed'n of Indep. Bus. v. Dept. of Labor (21A244)

argument 21A244

Nat. Fed'n of Indep. Bus. v. Dept. of Labor

Supreme Court of the United States 2h 8m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the legal dispute over OSHA’s COVID‑19 vaccine and testing mandate?

John G. Roberts 0:00

We will hear argument first this morning. Ін аплікацій twenty one A two hundred forty four National Federation of Independent Business versus the Department of Labor and the Consolidated Case. Mr. Keller?

Paul D. Clement 0:15

Mr. Chief Justice, and may it please the court. OSHA's economy wide one size fits all mandate covering eighty four million Americans is not a necessary, indispensable use of OSHA's extraordinary emergency power, which this court has recognized is narrowly circumscribed. Just three days ago The U.S. Postal Service told OSHA that this ETS's requirements are so burdensome for employers that the federal government is now seeking an exemption from its own mandate for the Postal Service. That's because OSHA's economy wide mandate would cause permanent worker displacement rippling through our national economy, which is already experiencing labor shortages and fragile supply lines. OSHA has never before mandated vaccines or widespread testing, much less across all industries.

Paul D. Clement 1:06

In fact, the June Healthcare COVID ETS and the nineteen ninety one bloodborne pathogen rule both rejected vaccine mandates and widespread testing, and those were even just for targeting health care workers. And here OSHA's vaccine and testing mandate treats virtually all industries, workplaces and workers the same, but even Congress's rescue plan identified high risk workplaces, and OSHA itself here recited state data confirming that certain industries like healthcare and correction facilities are higher risk. Our nation's businesses have distributed and administered hundreds of millions of COVID vaccines to Americans. Businesses have encouraged and incentivized their employees to get vaccines. But a single federal agency

Paul D. Clement 1:54

Tasked with occupational standards cannot commandeer businesses economy wide into becoming de facto public health agencies. So this court should immediately stay OSHA's unprecedented ETS before Monday when OSHA begins enforcement. I welcome the court's question.

Clarence Thomas 2:10

Mr Keller, um how are we to decide um when uh an emergency temporary standard or emergency temporary standards are necessary. Uh what factors do you think we should use?

Paul D. Clement 2:24

Justice Thomas, I think the first factor that you would have to look at is Is this an indispensable or essential measure and that necessarily would require looking at what are the alternatives available? You'd have to also look at necessary to what end, and it's to abate a grave danger, and it's for an emergency, it's in a temporary setting. So the factors you'd want to consider are what are the risks and not only what are the risks for any isolated situation but compared to an everyday risk. Here, when OSHA itself has never mandated vaccines or widespread testing before. That itself, even in its ten prior ETSs, which m courts blocked almost all of the challenges to these prior ETSs, all of those are factors that would

Paul D. Clement 3:10

absolutely determine the scope of what OSHA could do here. In fact, in the June ETS, what OSHA said was quote, OSHA recognizes that many states have taken action to protect employees with mandatory requirements that may not be appropriate for an ETS on a national level.

Clarence Thomas 3:29

The um the You know, when in in uh McCulloch versus Maryland, Ch Chief Justice Marshall in looking at necessary and proper uh saw necessary as more expansive than that, uh as certainly modified by proper or in the context of proper. So it just suggests that necessary can be really necessary or not necessarily really necessary. Uh the and and I just think that y you know, the you need more than to say, oh, a lot of bad things could happen, uh, to uh interpret what that means. Is it restrictive, is it very firm, is it super necessary, and if it is, why?

Paul D. Clement 4:14

Justice Thomas, the the reason why it would be something approaching the indispensable or essential definition of necessary here is there's a very key intrastatutory textual clue. The emergency power must be necessary. The regular power that OSHA wields has to be reasonably necessary or appropriate.

Clarence Thomas 4:32

So when do we determine that?