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Speaker 1: This is Bloombird Law, with June Brusso from Bloombird Radio.

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Speaker 1: On Thursday, a divided Supreme Court blocked the centerpiece of

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Speaker 1: President Joe Biden's effort to get more people vaccinated against

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Speaker 1: COVID nineteen, rejecting a rule that would have required eighty

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Speaker 1: million workers to get shots or periodic tests. The outcome

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Speaker 1: was no surprise after the oral arguments, where the liberal

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Speaker 1: justice is stressed the emergency the country is facing and

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Speaker 1: the conservative justices stressed federal agency overreach. Here are Chief

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Speaker 1: Justice John Roberts and Justice Elena Kagan. It's an extraordinary

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Speaker 1: useful emergency power occurring in an extraordinary circumstance, a circumstance

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Speaker 1: that this country has never faced before. As more and

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Speaker 1: more mandates and more and more agencies come into place,

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Speaker 1: it's a little hard to accept the idea that this

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Speaker 1: is particularized, to think that it's an ocean regulation, that

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Speaker 1: it's a CMS regulation, that it's a federal contractor regulation.

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Speaker 1: It seems to me that it's the government is trying

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Speaker 1: to work across the waterfront and it's just going agency

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Speaker 1: by agency. The stakes were apparent, and some of the

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Speaker 1: justices seemed a bit testy during the three and a

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Speaker 1: half hours of arguments. Here are Justices Stephen Bryer and

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Speaker 1: Samuel Alito until I repeat my question to me, it's unbelievable,

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Speaker 1: but I want to hear what you say. How can

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Speaker 1: it be in the public interest, which is a requirement.

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Speaker 1: How can it be a balance of harms in this case?

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Speaker 1: Assuming the arguments aren't off the wall on the government side,

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Speaker 1: and I'm believing they're not. Okay, that's what I want

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Speaker 1: to hear the answer to I'm not making that point.

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Speaker 1: I tried to make it as clear as I could.

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Speaker 1: I'm not making that point. I'm not making that point.

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Speaker 1: I'm not making that point. There is a risk. Right

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Speaker 1: joining me is Robert Field, Professor of Law, health management,

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Speaker 1: and Policy at Drexel un Diversity. So, Robert, why did

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Speaker 1: the six Conservatives block OSHA's vaccine mandate. The Conservative justices

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Speaker 1: felt that OSHA had exceeded its authority, that it's empowered

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Speaker 1: to control health and safety in the workplace, not general

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Speaker 1: health and safety concerns for the entire population, and they

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Speaker 1: thought that this was really a general population health concerns,

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Speaker 1: not a limited occupational health concern and therefore OSHA didn't

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Speaker 1: have the legal authority to impose the mandate, so the

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Speaker 1: liberals dissented. What was their reasoning? That this very much

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Speaker 1: affects the workplace, and the fact that it also affects

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Speaker 1: people outside of the workplace doesn't mean it affects workers

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Speaker 1: any less. That COVID is a risk that's a particular

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Speaker 1: problem if you're in office or an assembly line or

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Speaker 1: another workplace setting where you're close to other people, and

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Speaker 1: so the fact that you could be infectious outside of

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Speaker 1: the workplace doesn't make it any less of a workplace concern.

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Speaker 1: In their descent, were the liberals being a little bit

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Speaker 1: snarky when they said that the majority was lacking any

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Speaker 1: knowledge of how to safeguard workplaces and insulated from responsibility

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Speaker 1: for any damage it causes. I would call that a

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Speaker 1: little bit snarky or sarcastic. Yes. Having listened to the

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Speaker 1: arguments last Friday, I felt that they were particularly acrimonious,

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Speaker 1: So it's not that surprising that the descent would be

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Speaker 1: that strident. Was this about the six Conservatives being strict

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Speaker 1: textualists or was it about the six Conservatives trying to

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Speaker 1: reign in federal agency power. I think At its heart,

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Speaker 1: it is suspicion of federal power. And this is a

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Speaker 1: conflict that goes back to the origins of our republic,

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Speaker 1: the conflict between states and centralized federal authority, and between

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Speaker 1: government action and individual liberty and flexibility. And we have

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Speaker 1: seen conservatives express skepticism over federal authority for decades. It

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Speaker 1: reached ahead during the Reagan administration, and I think that

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Speaker 1: antagonism to federal regulation has basically been part of our

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Speaker 1: political structure since Reagan. Certainly it's been at the forefront.

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Speaker 1: And the Buying administration knew what it was getting into,

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Speaker 1: knew that this might be the result, I would assume,

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Speaker 1: So they had to know that it would be challenged,

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Speaker 1: because it seems like everything they do get challenged, and

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Speaker 1: they had to know that with this Supreme Court there'd

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Speaker 1: be a difficult road to convince the Conservatives that federal

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Speaker 1: authorities should extend this far. My guess is that they

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Speaker 1: felt that perhaps Kavanaugh and Barratt and Roberts as well

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Speaker 1: would be receptive to their arguments and that would be

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Speaker 1: enough to sway the Court. But obviously it wasn't. The

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Speaker 1: Liberals managed to cobble together a majority to allow a

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Speaker 1: second amen stration rule that would require shots for workers

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Speaker 1: in nursing homes and other facilities that receive Medicare and

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Speaker 1: Medicaid payments to go forward. That was on a five

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Speaker 1: to four vote, with the Chief Justice and Justice Brett

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Speaker 1: Kavanaugh joining the liberals. Why was that vote different. It's

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Speaker 1: a more limited mandate. For one, it just applies to

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Speaker 1: healthcare facilities, not to of the workforce, and I think

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Speaker 1: the statutory authority is clearer. The federal government, since the

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Speaker 1: start of Medicare and Medicaid, has been issuing standards for

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Speaker 1: the facilities that receive its money, and those standards have

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Speaker 1: become more complex over the years. So it's well established

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Speaker 1: that Congress wants the facilities that receive federal money to

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Speaker 1: meet some kind of threshold for keeping patients healthy. They

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Speaker 1: certainly aren't funding Medicare and Medicaid so that facilities can

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Speaker 1: be killing patients. They the facilities to make patients as

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Speaker 1: healthy as possible. So with that track record with that

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Speaker 1: president in terms of government actions, there's a stronger statutory

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Speaker 1: footing for allowing CMS to go forward. So were you

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Speaker 1: surprised then that for Conservatives still dissented even in that case, Yeah,

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Speaker 1: I was surprised. I thought Barrett at least would vote

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Speaker 1: to support the healthcare mandate, and perhaps Coursa. I'm not

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Speaker 1: surprised that Alito and Thomas didn't, but I thought, given

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Speaker 1: the clearer statutory authority to ensure the health and safety

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Speaker 1: of people who work in government finance facilities and the

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Speaker 1: patients who received care, they're coupled with the emergency nature

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Speaker 1: of the COVID pandemic and the threat the hospitals which

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Speaker 1: are overflowing right now, I'm surprised that at least Barrett

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Speaker 1: was not more sympathetic to the mandate. In his dissent,

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Speaker 1: Justice Mommas said the vaccine mandate would be forcing healthcare

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Speaker 1: workers to undergo a medical procedure they do not want

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Speaker 1: and cannot undo. What the dissenters were saying, it's it's

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Speaker 1: ignorance of health. Um. The vaccine does not stay in

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Speaker 1: your body. What days in your body is your moown

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Speaker 1: immune system. It's like saying that you exercise and developed

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Speaker 1: stronger muscles, and that's now going to be with you

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Speaker 1: for the rest of your life. That's not a foreign substance.

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Speaker 1: That's your muscles. It's not a foreign substance, it's your

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Speaker 1: immune system. There is a myth that a lot of

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Speaker 1: people have bought into that a vaccine is a foreign

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Speaker 1: substance that days in your body, and so you're living

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Speaker 1: with something that's unnatural, and it shows complete ignorance of

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Speaker 1: how a vaccine works. Many vaccines are simply the virus

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Speaker 1: you would have gotten otherwise, but neutralized. And the whole

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Speaker 1: point is your body attacks it, your body removes it,

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Speaker 1: and your body is stronger as a result. What considers

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Speaker 1: the it's such contempt for science that they don't want

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Speaker 1: to even bother to learn the science. These justices have

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Speaker 1: clerks and their job is to do research related to

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Speaker 1: each of these cases. These are very bright people and

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Speaker 1: they could easily look up in a textbook what a

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Speaker 1: vaccine is and how it works. You know, I didn't

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Speaker 1: want to ask you cases that have come up on

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Speaker 1: emergency basis. Have they upheld the state state vaccine mandates

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Speaker 1: for the most part, state and private? Yeah, they have

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Speaker 1: for the most parts. And that's another issue here in

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Speaker 1: terms of the objections, and this was brought up several

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Speaker 1: times that states have primary authority for the health and

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Speaker 1: welfare of their populations. So the conservatives, at least they

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Speaker 1: said they would not have a problem if a state

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Speaker 1: issued a mandate. The question is whether the federal government

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Speaker 1: has the power to overridse to pre empt state laws

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Speaker 1: in this regard. And you may know, the federal authority

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Speaker 1: arise from the Commerce Clause, which says the federal government

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Speaker 1: can regulate interstate commerce. And so the hook here is

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Speaker 1: that the pandemic is affecting interstate commerce. And actually the

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Speaker 1: health worker mandate relies on a different congressional power, that's

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Speaker 1: the suspending power, where Congress can say we're offering you

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Speaker 1: money states or private entities if you abide by the

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Speaker 1: strings that were attaching to it, and that is a

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Speaker 1: clearer power under the Constitution. So Kagan said that um

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Speaker 1: in terms of national standards, several states have issued their

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Speaker 1: own laws outlawing mandates. So this is not just a

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Speaker 1: question of filling a void or states haven't acted. It's

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Speaker 1: a question of pre empting states that have taken an

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Speaker 1: act taken actions that are probably destructive of public health.

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Speaker 1: Any final thoughts on all this controversy over vaccines. Pandemics

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Speaker 1: bring out the worst in people. People are scared, they

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Speaker 1: don't know what to do. And even with our great

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Speaker 1: scientific establishment, we can't give clear answers. And we've seen

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Speaker 1: this back in history. The Black Death of the fourteenth

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Speaker 1: century caused all sorts of crazy, irrational behaviors, and throughout

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Speaker 1: history pandemics are scary unknown threats. So in a sense

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Speaker 1: it shouldn't be surprising that it brings out a lot

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Speaker 1: of bizarre attitudes and behaviors. UM. Unfortunately those get in

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Speaker 1: the way of productively dealing with things. But UM, pandemics

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Speaker 1: do not provide the best environment for rational course. Thanks

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Speaker 1: for being on the Bloomberg Laws show. That's Robert Field,

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Speaker 1: Professor of Law and health management and Policy at Drexel University.

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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: Texas six week abortion ban was back in court the

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Speaker 1: Fifth Circuit herd oral arguments last Friday over whether the

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Speaker 1: Texas Supreme Court should now be asked to weigh in

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Speaker 1: on the law, delaying the case even further. The arguments

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Speaker 1: became rather heated, and Judge Edith Jones suggested that Judge

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Speaker 1: Stephen Higginson was litigating on behalf of the abortion providers

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Speaker 1: with his questions to the Council for the Texas a

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Speaker 1: g somehow that's not a holding, but the one you

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Speaker 1: won is Normally this court isn't litigating on behalf of

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Speaker 1: homicide or another. Is that a question to you or

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Speaker 1: to me? And am I? Am I litigating? By? I think?

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Speaker 1: Do you appreciate my difficult you like to persuade me.

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Speaker 1: I don't sense that you're intimidating, so you don't need

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Speaker 1: any assistance. I've asked you to question any premise I've made.

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Speaker 1: So if the suggestion is I'm litigating, push back on

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Speaker 1: any premise that I've had behind my question? Has there

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Speaker 1: been any unfair questioned you? Counsel joining me is Leah Littman,

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Speaker 1: a professor at the University of Michigan Law School. Leah,

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Speaker 1: this case went to the Supreme Court twice. Explain why

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Speaker 1: it's back at the Fifth Circuit. So what ended up

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Speaker 1: happening is the United States Supreme Court decided the issues

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Speaker 1: in the case as the parties were then arguing them,

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Speaker 1: And what the Texas state officials were arguing at the

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Speaker 1: time was that the law clearly did not give any

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Speaker 1: of them any enforcement authority and therefore they could not

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Speaker 1: be sued. But the United States Supreme Court said, is

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Speaker 1: we United States Supreme Court think that at least these

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Speaker 1: state licensing officials have the authority this when doctors and

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Speaker 1: nurses who perform abortions in violation of SB eight, Because

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Speaker 1: those licensing officials have that enforcement authority, they can be suited.

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Speaker 1: But that conclusion rests on an interpretation of state law,

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Speaker 1: and the United States Supreme Court is not the final

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Speaker 1: arbiter over the meaning of state laws. That job falls

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Speaker 1: to the state court. And so when the United States

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Speaker 1: Supreme Court sent the case back down to the Fifth Circuits,

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Speaker 1: the Texas officials filed emotion saying, we would like you

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Speaker 1: court to basically ask the Texas Supreme Court about whether

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Speaker 1: the United States Supreme Courts interpretation of the state law

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Speaker 1: was correct, and you Texas Supreme Court needs to tell

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Speaker 1: us whether these licensing officials actually do have the authority

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Speaker 1: discipline doctors and nurses who perform abortions in violation of

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Speaker 1: SB eight. So how would it help the abortion providers

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Speaker 1: if licensing boards were found to have the authority to

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Speaker 1: discipline doctors about this? If the licensing officials do have

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Speaker 1: the authority to discipline doctors who violate SBA, then the

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Speaker 1: abortion providers tend to them. Under the course sovereign immunity jurisprudence,

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Speaker 1: individual plaintiffs are required to name as defendants in lawsuits

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Speaker 1: some state officer who has some connection to the enforcement

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Speaker 1: of a law. And if these state licensing officials can

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Speaker 1: indeed discipline doctors who violate the law, then they have

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Speaker 1: enforcement authority and they can be sued as defendants. This

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Speaker 1: was a pretty contentious hearing. Some of the judges appeared

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Speaker 1: to be sort of sparring with each other. What was

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Speaker 1: the main contention? There were a few different contentions floating

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Speaker 1: around in the argument. One was just the propriety of

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Speaker 1: allowing the Texas officials to request certification to the tech

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Speaker 1: the Supreme Court. At this late stage in the case,

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Speaker 1: the Texas officials had never before asked any court, including

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Speaker 1: the United States Supreme Court, to certify a question to

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Speaker 1: the Texas Supreme Court, and so one of the Court

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Speaker 1: of Appeals judges, Judge Higginson, noted that there was never

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Speaker 1: any case where a court had certified a question to

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Speaker 1: a state supreme court after the state officials had lost

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Speaker 1: and so the fact that this looks like a late

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Speaker 1: stage request and just kind of uh face in the

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Speaker 1: continue to enforce this law even after their arguments had

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Speaker 1: been rejected at the United States Supreme Court was one

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Speaker 1: running concern and through line and pointed disagreement between the

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Speaker 1: judges in the oral argument. The second point of disagreement

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Speaker 1: was a matter of timing, that is, how urgent it

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Speaker 1: was was for the United States Court of Appeals to

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Speaker 1: act on this case or to further delay it by

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Speaker 1: certifying questions to the Texas Supreme Court. One of the

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Speaker 1: Court of Appeals judges, Judge Edith Jones, asked whether they

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Speaker 1: the Court of Appeals might just hold on to the

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Speaker 1: case until the end of June because there was a

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Speaker 1: chance that the Supreme Court might overrule Roe versus Ways,

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Speaker 1: which would allow Texas to prohibit abortions more than six

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Speaker 1: weeks after a person's last period. And so it seems

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Speaker 1: like one of the judges on the Court of Appeals

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Speaker 1: understands the time sensitive nature of this case. The law

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Speaker 1: is currently in effect and is solifying people's ability to

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Speaker 1: exercise what is currently a constitutional right. But the other

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Speaker 1: judges seem to want to hold onto the case as

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Speaker 1: further delay its resolution until they dook whether the Supreme

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Speaker 1: Court is going to reaffirm or overrule Row. How unusual

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Speaker 1: is it to decide to put off the case until

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Speaker 1: the Supreme Court decides when the Supreme Court has sent

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Speaker 1: the case back to the Fifth Circuit to decide. It's

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Speaker 1: extremely unusual for the Court of Appeals to consider a

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Speaker 1: motion for certification at this stage, because at no previous point,

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Speaker 1: either in the Court of Appeals or the United States

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Speaker 1: Supreme Court did the Texas officials pressed the court to

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Speaker 1: certify a question to the Texas Supreme Court um. So

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Speaker 1: in that light, it feels like, and it looks like,

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Speaker 1: at least to one of the judges, as an unfair

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Speaker 1: dilatory tactic. If the state officials actually had wanted the

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Speaker 1: Texas Supreme Court to weigh in and thought that was

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Speaker 1: necessary to the court resolution of these cases, they could

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Speaker 1: have and would have requested that earlier. So the Supreme

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Speaker 1: Court sent it back to the Fifth Circuit specifically, and

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Speaker 1: then the Fifth Circuit should have sent it back to

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Speaker 1: the federal judge who initially decided the case. Yes, I

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Speaker 1: think that that's correct. The reason why the United States

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Speaker 1: Supreme Court sent this case back to the U. S.

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Speaker 1: Court of Appeals for the Fifth Circuit is that they

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Speaker 1: the United States Supreme Court technically heard this case on

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Speaker 1: what it's called a petition for sir serrari before judgment

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Speaker 1: in the Court of Appeals, and when the Supreme Court

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Speaker 1: does that, they will often then send the case back

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Speaker 1: to the Court of Appeals. Um. But here there really

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Speaker 1: wasn't anything for the Court of Appeals to do, given

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Speaker 1: that the United States Supreme Court had resolved the arguments

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Speaker 1: in the case about whether the defendants were proper parties

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Speaker 1: to be sued, and they both could and should have

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Speaker 1: immediately sent the case back down to the district court

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Speaker 1: to do. What was next on the district court was

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Speaker 1: the things to do, which was considered the provider's request

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Speaker 1: for an injunction against the law. Now, the district court

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Speaker 1: judge seems inclined to find in favor of the abortion providers.

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Speaker 1: I mean, could we consider that as a reason why

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Speaker 1: the Fifth Circuit didn't send it back to the district

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Speaker 1: court judge? I think absolutely. Um. The district judge in

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Speaker 1: this case has issued one injunction against SB A that

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Speaker 1: was in the case that the United States brought against Texas,

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Speaker 1: and it seemed earlier in this case, the case brought

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Speaker 1: by the providers to be on the cusp of entering

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Speaker 1: an injunction against sight. And we know that the U. S.

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Speaker 1: Court of Appeals for the Fifth Circuit didn't think that

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Speaker 1: there should be an injunction against this law. It's stayed.

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Speaker 1: That is, it put on whole um the proceedings in

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Speaker 1: the district court in the case involving the providers the

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Speaker 1: dis case, and then it previously stayed the injunction that

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Speaker 1: has put on hold the injunction that the district court

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Speaker 1: had issued in the case brought by the United States.

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Speaker 1: So it seems like the U. S. Court of a

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Speaker 1: spills so that the Circuit is very aware that the

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Speaker 1: district Court is inclined to enjoin this law and that

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Speaker 1: they don't think and kids should be enjoying. So I

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Speaker 1: don't understand why the Supreme Court took this route instead

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Speaker 1: of just do they just want to avoid deciding the

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Speaker 1: ultimate question. There's no way of knowing that, but it

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Speaker 1: just seems like this is this is a ridiculous to

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Speaker 1: be sending it back to the Fifth Circuit. So based

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Speaker 1: on how the Supreme Court wrote the opinion in this case, UM,

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Speaker 1: it did not seem like they thought there was any

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Speaker 1: need for expediency two get this law off the books

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Speaker 1: and to stop it from being enforced. Even though they

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Speaker 1: heard the case on an expedited schedule. Um, they took

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Speaker 1: their time deciding the case, and then they did not

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Speaker 1: issue a stay against the law while they were considering

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Speaker 1: it Um. And so it doesn't seem like a majority

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Speaker 1: of the Court believes that it is an urgent matter

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Speaker 1: to put this law on hold and allow abortions to

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Speaker 1: resume in Texas. And again, the way the Justice gorsuch

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Speaker 1: Rosie opinion for the Court made clear that their conclusion

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Speaker 1: that the providers could sue the state licensing officials was

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Speaker 1: nearly because of their interpretation the Streme Court's interpretation of

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Speaker 1: how this state law was written. And so they invited

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Speaker 1: and opened up the door um for this challenge that

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Speaker 1: the Supreme Court had not interpreted the state law correctly. Um.

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Speaker 1: The dissenting judges UM, the Chief Justice, together with the

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Speaker 1: Democratic appointees, made clear that basically, no matter how the

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Speaker 1: state wrote this law, UM, the providers could at a

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Speaker 1: minimum to the state court clerk and the state attorney general. Um.

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Speaker 1: But because the majority dismissed that possibility, they created this

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Speaker 1: universe in which the provider's lawsuit roser fell depending on

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Speaker 1: the proper interpretation of the state law and who it

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Speaker 1: gave enforcement authority too. So the judges, if the Supreme

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Speaker 1: Court uphols Mississippi's abortion law, how does that affect the

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Speaker 1: Texas abortion law? It will certainly make it more likely

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Speaker 1: that the Texas abortion law could be upheld if a

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Speaker 1: court were to reach the merits of the lawsuit. Tactically,

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Speaker 1: the issues that the Court are deciding right now are

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Speaker 1: not whether the law is unconstitutional, but instead whether the

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Speaker 1: law can be challenged in federal courts. Um. Now, if

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Speaker 1: the Supreme Court upholds the Mississippi statute and either overrules

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Speaker 1: formally Roll versus Wade, or dramatically modifies it, then that

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Speaker 1: would create the possibility that were a federal court to

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Speaker 1: reach the merits of whether Texas spate is constitutional, they

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Speaker 1: could possibly uphold it. One of the judges said, normally,

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Speaker 1: discourt isn't litigating on behalf of one side or the other.

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Speaker 1: And I know I've said, isn't this unusual? Twice already

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Speaker 1: during this interview. But that also seems really odd for

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Speaker 1: a judge to say there were definitely several oddities about

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Speaker 1: the oral argument. It's clear that there are strong feelings

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Speaker 1: on both sides about the legal arguments and also how

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Speaker 1: the courts are handling this case. UM. Judge Higginson in

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Speaker 1: the dissenting opinion, when the U. S. Court Appeals opted

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Speaker 1: to schedule oral argument on this motion to certify invite

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Speaker 1: of the United States to intervene in the law student

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Speaker 1: participate as an immigist because he felt that the courts

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Speaker 1: and the States were slow walking this challenge um, and

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Speaker 1: in the process nullifying people's ability to exercise their constitutional rights.

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Speaker 1: On the other hand, you have the two Republican appointed

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Speaker 1: judges on the Court of Appeals kind of making jokes

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Speaker 1: that the oral argument, suggesting that Supreme Court got this

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Speaker 1: case wrong, um. And so there are definitely strongly held

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Speaker 1: us on both sides, which made for quite um testy

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Speaker 1: oral argument. It seems like a complete and total uphill

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Speaker 1: battle for the abortion providers. Just it seems to indicate

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Speaker 1: how smart it was for the right to life people

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Speaker 1: in Texas to to frame the law in this way.

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Speaker 1: I think yes and no. These arguments only had a

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Speaker 1: chance of succeeding given the change composition of the Supreme

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Speaker 1: Court as well as the very very conservative US Court

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Speaker 1: of Appeals for the Fifth Circuit. The two judges on

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Speaker 1: this panel include one who has written in opinions criticizing

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Speaker 1: Row versus Way it is urging the Supreme Court to

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Speaker 1: overrule it. So this was a very favorable panel. And

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Speaker 1: I don't think, honestly much depended on the fact that

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Speaker 1: the law was crafted this particular way. Rather, it depends

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Speaker 1: on the composition and of the Court of Appeals and

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Speaker 1: the United States Supreme Court, and the fact that they

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Speaker 1: are very hostile to the rights to an apportion What

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Speaker 1: about the Texas Supreme Court? The Texas Supreme Court, I'm

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Speaker 1: not as familiar with them, um, but I don't think

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Speaker 1: anyone thinks of them as a left leaning court. UM.

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Speaker 1: I don't know, however, what they might say were the

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Speaker 1: issue to be certified to them, as I expected will be.

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Speaker 1: Thanks Leah. That's Professor Leah Littman of the University of

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Speaker 1: Michigan Law School. I'm June Grass. When you're listening to Bloomberg,