COVID in the Courtroom

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S1: This ad free podcast is part of your slate plus membership.

S2: It’s an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before.

S3: Does that agency have the power to at least say, look the person next to you, they don’t have to get vaccinated, but if they don’t get vaccinated, they should be wearing a mask or they should be getting tested. And so they were wrong. I mean, they were wrong in that part of the case.

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S1: Hi and welcome back to Amicus, this is Slate’s podcast about the law and the rule of law and the courts and the Supreme Court. I’m Dahlia Lithwick. I cover some of those issues at Slate and we have had a busy New Year. We’ve had the anniversary of January six with the Justice Department and the Jan. six committee working to unearth what really happened and who to hold accountable. We’ve had voting rights on a collision course with the filibuster in the Senate, and we had fast track cases about COVID mitigation efforts that were heard last Friday decided this past Thursday night at the U.S. Supreme Court. Now that latter question COVID and how the government may or may not respond to a pandemic that is once again crushing health care systems, buckling supply chains. That’s the topic of this week’s show, and part of me wants to just suggest that if you never caught the episode just a few weeks ago with Richard Lazarus, you might give that a spin as well. Because while Richard was talking about environmental regulations, he could just as easily have been talking about health rules. And he proved, I think, pretty prophetic on helping us see the roadmap of how government agency rules are likely to be dismantled by this current Supreme Court later on in the show. Slate Plus members are going to have a chance to listen to me chat with Mark Joseph Stern about state efforts to bar January six participants from holding office, as well as the refusal of Neil Gorsuch to mask up this week at the High Court and questions around voting rights legislation that are going to be stymied in the Senate. That segment is only accessible to Slate Plus members. Thank you so much for being the support we need at the magazine right now. But first to COVID, so here are the numbers on Friday, according to the New York Times. An average of more than 800 and 3000 COVID cases have been reported every day in the United States. That’s an increase of 133 percent from just two weeks ago. Twenty five states and territories have now reported their highest weekly caseloads yet. Deaths are up 53 percent to an average of roughly 1000 871 deaths per day. Omicron is pushing hospitals close to their capacity limits in about two dozen states, according to new data posted by HHS. At least 80 percent of staffed hospital beds were occupied in 24 states on Thursday and in 18 states and Washington, D.C. At least 85 percent of beds in adult intensive care units are full, with the most acute scarcity of beds. Happening in Alabama, Missouri, New Mexico, Rhode Island and Texas now, my guess is that many, most of you are living in this and our hearts on this show go out to you. Last Friday, the U.S. Supreme Court heard two cases about the Biden administration’s efforts to mitigate all this, and it was fundamentally a tale of two totally separate realities.

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S2: What we make of the fact that Congress and OSHA has not traditionally mandated other vaccines for other hazards that could be pose a grave grave risk, some might say. This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. The flu kills people every year. Other grave diseases due to and there are vaccines against many, and we don’t need to list them all. But traditionally, OSHA has not regulated in this area. This is the policy that is most geared to stopping all this. I’m not saying the vaccines are unsafe. The FDA has approved them. It’s found that they’re safe. It said that the benefits greatly outweigh the risks and not contesting that in any way. I don’t want to be misunderstood. There is nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves. But is it not the case that this these vaccines and every other vaccine of which I’m aware and many other medications have benefits and they also have risks. More and more people are dying every day. More and more people are getting sick every day. I don’t mean to be dramatic here. I’m just sort of stating facts. It seems to me that the more and more mandates that pop up in different agencies, it’s fair. I wonder if it’s not fair for us to look at the court as a general exercise of power by the federal government and then ask the questions of Why is Congress have a say in this and why don’t? Why doesn’t this be the primary responsibility of the states? Courts are not politically accountable, courts have not been elected. The courts have no epidemiological expertise. Why in the world would courts decide this question?

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S1: Late Thursday of this week, the court ruled in both cases. In one lawsuit, the court found by a six to three margin that the Biden administration’s vaccine or testing mandate for employers with over 100 workers should be blocked, and that’s stymied a key prong of the White House’s efforts to address the pandemic. In a separate, smaller case in a five to four vote this time, the court allowed a much more limited mandate, requiring health care workers at facilities that receive federal Medicare and Medicaid moneys to be vaccinated. Joining us today to help understand where COVID is, where the Supreme Court is, where the country is, is the wonderful Andy Slavitt. He is a former senior adviser to the White House’s pandemic response team under President Biden. He’s host of the award winning in the Bubble podcast, and he’s author of the book Preventable The Inside Story of How Leadership Failures, Politics and Selfishness Doomed the U.S. Coronavirus Response before serving on the Biden COVID 19 response team. Slavitt spent time as the acting administrator of the Centers for Medicare and Medicaid Services from 2015 to 2017. We have talked in very lawyerly ways on this show about very lawyerly questions around the possible dismantling of the administrative state and the Supreme Court. This is not that show. Andy, I wanted to have you here this week to help us understand the reality in terms of Omicron in terms of mitigation efforts. What is happening on the ground all around us as experts try to deal with this pandemic in real time? So welcome first and foremost to the podcast.

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S3: Well, thank you.

S1: So I gave those numbers at the top of the show about where I think we are today. I think you told NPR less than a month ago, we have to focus in on how full the acres are, how much we can prevent the ICUs from filling up and the staff from getting overworked. That was what you were triangulating against in December. And I guess my question is, is that still what matters to you and are we there or about there now?

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S3: Well, those numbers are just mind boggling, aren’t they? I mean that they’re almost hard to imagine, and they’re both. Of course, don’t capture all the infections out there, as everyone knows. And sadly, they’re only going to get worse before they get better. You know, we probably have, you know, three or four million, if not more, by some estimates. It’s a side of eight million people on some days that are getting positive infections to just start recording them. And it’s mind boggling. We have a 330 million person country, so we’re talking about anywhere from two to three percent of the country getting sick every day. So with this virus, and even though it is indeed a virus that is milder, it doesn’t like to attack our lungs. It likes to stay in the upper airways, which makes it more spreadable. It means it does less damage to us. And that is combined with the fact that we’ve got a country that’s, you know, for all of the arguing to and fro is largely vaccinated, at least among adults. And so it’s less severe. But your point about the hospitals in the region, I think the accused are indeed the place for us to be watching and concerned about is because with large, large numbers of people getting the virus, that’s enough. Even mild cases to push people in to the hospital. There are two types of people tend to be going into the hospital. From all the data, we’ve seen that 100 percent true, but it’s just darn close. People who are unvaccinated are going to hospital in much greater numbers, and that includes, by the way, kids zero to five. So let’s not forget that there are people that can’t be vaccinated, and people with preexisting medical conditions are also a large percentage of people, even if they have been vaccinated. There are complications. And unless we get cold hearted, these were the same people that many of us fought for during the Affordable Care Act versus sick people with preexisting conditions. These are human beings, and unless we think though, thank God, it’s not me. That’s what got us here. Let’s just remember at all times that that feeling of, oh, at least it’s not me is is one of the reasons why this virus spreads.

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S1: And maybe can you just give a sense because I don’t know anything about health care? You know, the stories I’m hearing about folks who can’t get necessary surgeries, folks who are standing in lines for hours for a bed. Supply chain disruptions that mean that basic equipment is not happening. I mean, we just keep hearing about doctors and nurses and folks in hospitals and how to the extent that they’re not testing positive and so many of them are. I mean, this is tangibly materially affecting health care for everyone, not just people who have COVID. We’re there, right?

S3: Yeah. I mean, look, this is a crisis in fast motion. And what that means is you can live with the community. And on a Friday of one week, the danger level can be quite moderate. And on the Monday of the following week, you could be a crisis levels of spread. That’s what exponential spread means. It’s not a concept that our brains naturally understand because, you know, when you look outside, things look exactly the same. This is an invisible virus and you can’t see things. But if you did go inside these hospitals, what you’d see in many communities are very simply a staff that just simply can’t take care of people. And so what happens is on that Friday, if you went into that hospital for something relatively serious, you could get some attention on that following Monday, you’d be forced to triage. And first of all, many people treat themselves because no one wants to go near a hospital unless they need to these days. I would try to get people to want to go to the hospital any day, but particularly now and then, you know, hospitals are forced to triage. They do the best they can, but it’s certainly not the time that you want to be, you know, have a gallstone or anything like that. And that’s a matter of of unfortunately misfortune, not a matter of things that we’re doing to one another. So it’s at a perilous time. I think it’s going to pass relatively quickly, but we’re going to we’re going to have the scars from all this time. And so just as people’s favorite restaurants are closed and schools are closed and other things are closed because there aren’t enough people to operate them. The very sad things happening in hospitals.

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S1: Before we move on to the decisions on Thursday, I just want to flag that you, I think, are trying to make this point about the reality around us, what we perceive and what we can accurately assess and where we are wrong. And one of the tweets that I clocked last week when the court was hearing these two vaccine cases was your tweet that laid bare what we were all seeing, you tweeted. In today’s Supreme Court case, lawyers who have COVID and aren’t allowed in the Supreme Court building or arguing that other people should have to go to work with unvaccinated, untested people. And I think your tweet captured the reality. You know, we had two oral advocates from two of the states who are resisting the vaccine or test mandate, who couldn’t come in because they tested positive. We had, you know, the justices, with the exception of Justice Gorsuch wearing masks, that the reality of what the justices themselves were actually experiencing. Workplace didn’t map on to how they were talking about other workplaces. And I guess I think it reminded me a little bit of some of the language in the Heller the gun case where Justice Scalia was really scrupulous to say, but no matter what happens, it would be insane to let people bring guns into federal buildings like that would be nuts because I’m sitting in one, and I guess I just wondered if you could help us think through this. Just I keep using the word split screen. But the reality that was happening in the court was so dissociated from the reality that you were describing out in the world.

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S3: Let me put it in this context that we could be, I think, critical of President Biden for anything we want to. He, you know, I think he wants to be held accountable. He cares in my in my conversations with him about one thing only and that’s the lives of Americans. And if anything, he runs towards these challenges. So he didn’t predict Macron. But, you know, in the last few days, he’s announced a billion new tests coming is announced a new testing czar, he’s he’s created the 20000 testing sites. And then I think occasionally it would be useful for the media to contrast that with, say, Ron DeSantis, who made the decision that he’s going to pay people a cash bonus who decided not to get vaccinated and lose their jobs with states that have outlawed any amount of public health support, including mask mandates, with people who’ve taken power away from the school, from the public health officials and giving it to school districts to decide whether kids should wear masks. I mean, these are people that are elongating the virus. And we saw last week, if you want to talk about theater, we started hearing last week where Dr. Fauci was in front of a Senate committee. And the purpose of the committee was a valid one. It was to to basically put into focus the response of the administration and the crisis facing Americans. And Senator Marshall from Kansas thought the most important thing that Americans needed to hear about was whether or not he could find. Tony Fouche is publicly available financial statements. So I think we have to remember that the first year of this crisis response was very different. We had a president who denied any accountability for the response. And those people are still out there and they’re bringing cases to the Supreme Court to try to prevent public health actions, trying to keep our workplaces from being kept safe. And I just wonder if they were spending all this creative energy fighting the virus instead of fighting the people who are fighting the virus. We’d be a lot better place.

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S1: Before we talk about sort of the substance of what the court found in sort of saying that the Oshae mandate was an overreach and the HHS was not, but one of the things that was so weird to me in that first case, which was the OSCA case NFIB versus Department of Labor, which involves an emergency temporary standard, as you say, trying to respond to a crisis that is morphing by the week. The emergency rule that OSHA puts out required employers with 100 or more workers to give their staff a choice between getting the vaccine or weekly mask and testing regime in the workplace. Eighty four million people about would have been affected. And OSHA routes its own statutory authority to do this in a federal law that allows us to protect employees from quote a grave danger resulting from quote physically harmful quote agents quote new hazard sounds kind of like we’re in that bucket. And we have a group of red states, as you say, who file suit and then the argument unfolds. And it is literally like my great uncles sitting around the dinner table bickering about risk, a thing they don’t understand. And so then you get into fights about, Oh, Sonia Sotomayor got the number of kids wrong and oh, Neil Gorsuch may or may not have misstated how many people die as a result of seasonal flu. I mean, I guess I’m asking in the realm of theater what it’s like to watch the theater of what should be a legal statutory constitutional conversation that is playing out with weird sound bites about whether I think this is more or less like the flu.

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S3: Well, look, I’m a great respecter of the Constitution, I mean, and I think the idea that these are things that are running roughshod over the Constitution, it’s just wrong. These are authorities that the Congress gave to our agencies to act in emergencies, and we have a very conservative court and these cases are formed by as much as justices don’t like to admit it, by public perception, by their own perceptions. And, you know, I don’t know who advised them. I’m sure that their clerks did some research for them to come out with these statements. But you know, these are not the people who should be making public proclamations. They should be looking at the constitutionality of what was done, what was decided. And look, I’m willing to accept the fact that sometimes the right thing that should happen can’t happen because our laws don’t allow it. That’s unfortunate. But it wasn’t the case here. Here, it was pretty obvious that we’re sending people into a very hazardous situation. You know, don’t picture your own workplace, picture a meatpacking plant, picture a clerk at a store that’s got to deal with hundreds and hundreds of people every day. Picture people who are enclosed in basements and an Amazon warehouse sorting packages with people next to them. Would you be comfortable there? And does the agency that in 1970 was given? Exactly. The authorities that you described, does that agency have the power to at least say, look the person next to you, they don’t have to get vaccinated, but if they don’t get vaccinated, they should be wearing a mask or they should be getting tested. And so they were wrong. I mean, they were wrong in that part of the case.

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S1: It seems to me that the nut of the unsigned six to three opinion in terms of the employers with more than 100 workers case seemed to be the court saying that OSHA exceeded its statutory authority because it only has jurisdiction over the workplace. But the pandemic exists both inside and outside the workplace, and it is not therefore the kind of quote grave danger envisioned by the statute. And it quote falls outside of OSHA’s sphere of expertise. And the court found just to quote permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face those same risks while on the clock would significantly expand OSHA’s regulatory authority without clear congressional authorization end quote. And OSHA, of course, put in heaps and heaps of evidence suggesting that, of course, COVID 19 poses special risks in most workplaces. Can you talk a little bit about this inside the workplace vs. outside the workplace distinction that the court hinged pretty much this entire decision upon?

S3: Well, it doesn’t pass a common sense test because in every place else I go, I can control myself and I can decide whether I want to go into a particular store or not. I can decide whether or not I want to go into a movie theater or a concert or go to a gym to work out. I don’t have a lot of choice in the whether or not I have to go to my job. For most Americans, that’s simply not an option. It’s a place they’re required to be. It’s because they’re required to be there that we have this agency that’s designed to ensure that those places are safe. And if it wasn’t for OSHA, there wouldn’t be nearly the precautions that we’d see around equipment and machinery of children in the workplace. And still a lot of things that I think we all know need to be regulated and why this isn’t one of them, because it is fine distinction that they’re trying to draw, which says, Well, this isn’t a workplace hazard, this is a hazard hazard. You know, it is a place for someone with an answer already in mind to go find an argument as opposed to a person looking to answer. What happens when you evaluate an honest argument?

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S1: And maybe that is a good Segway Andy to the question about who decides and if you read Neil, Gorsuch is concurrence, at least in the OSHA case. For him, the central question is who decides? Nobody doubts that the COVID 19 pandemic has posed challenges for every American or that state, local and national governments all have roles to play. The only question, writes Gorsuch, is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people, or whether as 27 states before us submit that work belongs to state and local governments across the country and the people’s elected representatives in Congress. In other words, I guess what he’s saying is this is just this annoying outside agency in Washington. What do they know? Public health entities at the state and local level know vastly more, and I guess I wanted to just have you walk us through, if you can, the differential between the expertise and maybe just help us understand why the Biden administration is making this case, that this really requires that centralized agency in Washington, D.C., and all the expertise it brings with it that it’s not enough to have state and local governments and their expertise weighing in.

S3: I mean, look, I’ve talked to people who are supportive of the decision the justices made. You know, they would say, you know, we always start with the premise that we have limited federal government and that states and localities therefore have all the powers not explicitly described to the federal government and federal government agencies. And therefore, in their reading, whether or not I agree with it is another matter in their reading. You have to have very, very exclusive powers designated by Congress. And so I think on those grounds, they were probably never going to decide that I wish I had the authority here unless they were the explicit words COVID 19 in the Constitution, which they are not. They had no escape, on the other hand, for this decision and the decision around health care workers. I mean, it should have been a nine to zero vote. I mean, there’s literally explicitly the word is given. But when there’s that, those words given, that’s where the justices, I think, begin and end now they have to say things, for the record. So that when people look back on this decision and 10, 20, 40, 50 years, they don’t appear heartless, that they don’t appear, that they didn’t care about public health, that they don’t appear, that they didn’t think that these problems could get solved until they point to the fact that these things could easily be solved at the state and local level, and never mind the fact that whatever state you live in, you don’t have a lot of choice in what your state and local officials decide. And with a disease that spreads across boundaries quite easily, doesn’t make a lot of sense for this to be a scattershot patchwork of local decisions. But of course, there’s the expertise at federal levels to make these decisions. And I really don’t think that’s something that anybody of the court can really deny that there is that expertise in both places at the federal level and at state and local levels. And you know, you might say if you wanted to scoop your eyes and stretch it and say, well, but they could. They can be experts at the federal level on COVID 19 and pandemics and virology, but they can’t really be expert in every local condition. They can’t be an expert enough to say that in San Diego, the hazard is this. That’s what the people in San Diego are designed to do. So you can make any argument you want. But unfortunately, it’s not the argument that matters. I think they’re just really cooking up logic to make it sound like they are not taking away the ability to manage this public health crisis.

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S1: And can you if we turn for a minute to the second decision, which is Biden versus Louisiana, and that is the mandate from HHS, that health care facilities that get Medicaid and Medicare funds have to be vaccinated. The staff there but includes medical and religious exemptions. Do you have a theory of why the court splits differently? In that case, the court says that the mandate quote fits neatly within the language of the statute. Is this just as simple as Justice Kagan’s comment at argument that people who get Medicaid and Medicare money and work with patients just shouldn’t be allowed to kill people? Is it just that simple?

S3: Well, I’ve signed onto an amicus brief on this topic, and I also ran the agency, as you mentioned in your introduction, it runs Medicare and it’s as simple as the power of the purse. It’s a simple as if you go to the store and you see a defective product. You don’t have to spend your money on it. And if you’re charged with spending taxpayer money, then you have a right to say, Hey, I expect a certain level of standards for this money. I expect them to keep Medicare and Medicaid patients safe. Or why would I spend the Money Air Base Hospital or nursing home that had to take some extremes, like no staff, no clinical staff. And they said, Hey, here’s your bill. I want to take care of Medicare patients. You’d say, no, of course I won’t do that. Think about people who spend federal money. What if the Department of Defense ordered a fighter jet from Lockheed Martin and the fighter jet showed up and it didn’t have any of the equipment in the dash and it was unsafe to fly? Would we expect the Department of Defense to have to pay for that fighter jet? Of course not. So to me, this is very simply that’s the job of the federal agencies who are spending this money to make sure they’re spending it only. I care that it’s safe for people, and it’s hard to argue that people are safe going into facilities where there is a lot of unvaccinated staff.

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S1: And before we say goodbye, I want to just do a very quick speed round with you. Just let me know practical effect of the OSHA mandate being set aside. What does that mean in the coming days?

S3: Well, look, United Airlines. It was the first company, Scott Kirby, the CEO, there to decide to implement a vaccine mandate. And before he implemented that mandate, he had one person per week, one employee die since he implemented it. Two, I think by this grumbling at the beginning, but quite frankly, it’s been fairly quiet. He said no deaths and dramatically reduced cases. And so arguably every employer cares about their employees as the ability to implement this vaccine requirement. And so does every state and so does every local government. And so, you know, like everything else like happened with Medicaid a few years back with Medicaid expansion, we’re going to have the haves and the have nots. If you live and work in states and or for employers that care about public health and safety. You’ll be able to go to a workplace that’s much safer and if you don’t, you won’t. So look, this this case has been decided. It’s, in my view, not the correct decision, but each of us has to take accountability for making this country as safe as possible. And if you operate a workplace and you are willing to let people come into their workplace and potentially be the site of a superspreader event. Shame on you.

S1: Last question, and this is entirely self-serving, but for all the people who just want to hear you, tell us what to do the next couple of weeks, what are you? What is your of the moment thought? And you can fold into this answer. The chicken pox parties question, you know, let’s just get all. Get it, everyone should get it. And maybe the coda to that question, which is the what are you telling all the people who are operating under the I’m over it. Yeah, theory of COVID.

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S3: Look, it’s understandable that people feel that way. Everybody who has a different opinion is can’t be a bad person. People are feeling worn out and exhausted, and they don’t know when things end, and there’s just been a surprise around every corner. So, you know, these are all understandable feelings still. I wouldn’t knowingly and purposely get COVID if I could avoid it. I have it so far and I’m glad I haven’t. But I would say this if I get it, this is important to hear. You know, if you’re if you’re reasonably healthy and not elderly and you get it, if you’re vaccinated, you’re going to be OK. You’re not going to die and you’ve got risks of getting certainly sick. You’ve got risks, potentially. Even although I think there may be more modest of getting long term symptoms of COVID, and I’m very sympathetic to that. My own son has. Unfortunately, in that situation, could COVID over 15 months ago still has some lingering symptoms? But you know, those are risks that we have been facing in different forms for a long time. There are people that have lingering symptoms and the flu. Everything we do from getting into a car, the other things bring risks to them. So I don’t panic that if I got COVID, what scares me is me spreading COVID. And so if you do get it, you know, stay home for at least five days and stay home until you are symptom free. Then if you have access to a test, take a test and then you can go back and be around. People get be very careful around people who are in different circumstances and be very careful around the situation, around children and particularly those under five is really, really challenging for parents. Did a lot of episodes around this, this recently. So everybody’s got something in their circumstance, a friend, a kid at this or that of travel. And those are tricky situations. And I guess I’d say this increasingly, I believe that with all the tools at our disposal. Masks, boosters, shots soon, antivirals that you pick a thing that’s important to you. There’s a way to do it safely and we’ll get through the next few weeks. They’ll be rough. I would suggest that these are not the few weeks that you want to go have your, you know, your raging mosh pit party. But with any luck, the big question is going to be how much immune protection did we receive from a Democrat? And if the answer is quite a bit, then that’s going to bode, I think, for a likely a better year. I can’t predict that yet, but that’s what we’re all hoping for. So. And finally, just beware of your own mental health and sanity. And these are hard things and just hard things for you. They’re hard for your friends, are hard for your family. They have great, bad up to do something nice for yourself. Do something nice for your friends. Do something nice for a stranger. And hopefully we’ll be in a better place shortly.

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S1: Andy Slavitt is a former senior adviser to the White House pandemic response team under President Biden. He is host of the amazing award winning In The Bubble podcast. He’s author of the book Preventable The Inside Story of How Leadership Failures, Politics and Selfishness Doomed the US Coronavirus Response. And I have to confess far better than a raging mosh pit party right now. Is this conversation that we just had, and I know you are crazy busy, so thank you for your time.

S3: Thank you. Great to be here.

S1: And now the moment you’ve all been waiting

S2: for

S1: the Divine Mark Joseph Stern joins us in our Slate Plus segment where we talk about all the stuff we couldn’t get into the regular show. Mark Stern, welcome back.

S4: So happy to be here. You keep just raising the standard divine this time. What comes next?

S1: Transcendence, transcend. Let’s do transcendent and divine this week, and I will spend the weekend thinking of something better.

S4: Get out that this or as well.

S1: Happy New Year! Happy 2022. So far, it’s awesome.

S4: Yeah, that’s right. Splendid. Terrific. Great for the rule of law.

S1: We just in the main show talked about the two vaccine cases that came down on Thursday night, but we really focused in on the public health part of it. And I think that we owe our listeners at least a little bit of lawyer ish, jargony talk about the end of the administrative state and the deregulatory project. And I think you’re going to tell me that at least Thursday night didn’t signal the clatter clatter clatter boom of the end of federal agencies.

S4: Yeah, right. Yeah, I think so. That’s what I’ll tell you. I mean, I think that the court decided that it had two choices. It could either deploy some sweeping constitutional theory that would grind government to a halt, or it could use some kind of bizarre, fallacious logic to get its desired result across the finish line, and it chose the latter route. So we have the court essentially rewriting a statute that gives OSHA a very, very broad power to protect American workers from grave dangers and new hazards in the workplace. And the six justice conservative majority didn’t really try to pretend like the novel coronavirus doesn’t fall into those terms, but said, Well, you know, when Congress creates a statute that really disrupts or alters the federal state relationship, it has sweeping implications of economic and political significance. We expect it to speak clearly. And so even though you can easily slot COVID into this statute, this very broad delegation of authority to OSHA, we aren’t going to because we don’t think Congress spoke clearly enough to justify that. And the sophistry that the court deploys is, well, you know, OSHA exists to protect dangers in the workplace. But COVID exists in and out of the workplace. And so we just don’t think it’s the kind of thing that Congress intended for OSHA to regulate. Legislative intent is super cool now to us. And so we’re going to block this mandate and tell the Biden administration, too bad you’re out of luck. Maybe you can come back with a narrower rule, but will probably strike that down as well.

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S1: And just to try to pass the difference between the OSHA case and the HHS case, where we see Chief Justice John Roberts and Brett Kavanaugh swing over and vote with the liberal wing of the court to protect the HHS vaccine mandate for entities that receive Medicaid and Medicare funds and care for the sick Andy. Slavitt theory of the case on the show is essentially what Sonia Sotomayor asked last week at oral argument. You know, power of the purse. Right? It’s our money. We can attach conditions. Do you have a theory of why it’s a bridge too far, at least for the Chief Justice and for Brett Kavanaugh to go along with the sort of Justice Thomas Alito, Barrett and Gorsuch view in that case?

S4: So I think Andy theory is certainly plausible, but it’s worth noting that it’s not what the court said. It was what a lot of observers expected because this is a spending clause case. Congress gives this money out to states which give it to these facilities, and Congress gets to call the shots here and has just countless rules and regulations about how recipients of Medicare and Medicaid funds can use that money. So it would be logical for the court to say, Well, this is a spending clause case. Congress has a lot more leeway when it’s controlling the power of the purse. That’s not what the court said. Instead, it just issued a very brief couple of pages of statutory interpretation, saying, Hey, Congress allowed the Secretary of Health and Human. Services to issue regulations that protect the quote, health and safety of patients at care facilities that get this money and protecting patients from getting COVID from unvaccinated staff fits neatly within the language of the statute. And in case that weren’t enough, the entire American health care profession has lined up behind this rule and vigorously endorsed it as absolutely vital to furthering the goals of this statute. So that reasoning seemed to have swayed Roberts and Kavanaugh to join with the Liberals here, whereas Thomas Alito, Gorsuch Barrett take this very narrow view of the statute, which we don’t need to get into it too much. But if you talk to health law people, the Thomas view would just completely obliterate and upend the law of federal health care in this country. I mean, Thomas basically views the federal government’s role here as maybe like a bookkeeping bureaucratic role and not any kind of real substantive role over how this money is spent. And I just want to say like, that’s objectively wrong. Like you go read the statute. Thomas fundamentally misunderstands the statutory scheme here, like the majority gets it right. Thomas gets it wrong. We should be very glad that there was not one more vote for this demented view of the dissenters, but it is pretty frightening that we came so close.

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S1: And I guess we’re at least saying, Amy Coney Barrett all in. Yeah. To the extent that she was trying to position herself as somewhere in the imaginary 3-3-3 universe, at least on these questions of the powers of the administrative state, it seems as though she’s right in on the plan.

S4: And it it irks me because I know that she’s smarter than that. Like, I know that she realizes somewhere in her, in her very capacious brain that this position that she signed onto is just wrong. But I guess her ideological priors or her political preferences won out in this case. And so she cast an immensely radical and deeply alarming vote to, just as I said, radically overhaul and upend the law of Medicare and Medicaid in this country and said, No, I’m not going along with the five, even though the votes are already there. I’m going to do a protest here and sign my name with the nihilists.

S1: And somebody sent me a Instagram post this morning just reminding me because I had in fact forgotten because it was 640 years ago before the founding that Amy Coney Barrett’s first work event was a superspreader event, which the president almost died of COVID. So, you know, it’s not as though it’s not real. Before we leave vaccines and masks, I guess I have to ask this optics question, which I think you and I tried to get at last week when we described oral arguments, but I’m going to ask it again. You know, we’ve had a week now of Justice Neil Gorsuch not wearing a mask at oral argument, even though everyone else is Sonia Sotomayor calling in remotely. We don’t know why the court’s not telling us anything. But I guess I just want to ask a larger question Mark, which is what responsibility does the court have should the court have in modeling behavior in just signaling, Hey, COVID is real and masks actually help? Yeah, no responsibility.

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S4: I mean, look, the Supreme Court is the head of one of three branches of government. The heads of the other two branches of government believe that they have a responsibility to model healthy and thoughtful behavior here. I mean, even Mitch McConnell has been periodically saying Wear a mask. It’s important setting Trump aside. Joe Biden has certainly been modeling, you know, respectful masking. And I think that there’s no meaningful distinction between the justices of the Supreme Court and the president and the leaders of Congress when it comes to modeling, you know, respectful behavior for the citizenry of this country. I think Chief Justice Roberts would be the first person to agree with me. He’s basically said as much in some of his year-end reports, and I think it’s really odious and upsetting that Justice Neil Gorsuch would decide to zag in the entire lead opposite direction and take the Fox News approach of saying screw masks. You know, I’m not going to take this very basic and simple step to protect my colleagues from a lethal virus. I think he should be condemned for it in pretty blunt terms, because this is one of those sort of side jobs of being a public figure that’s incredibly easy to fulfill. And yet Gorsuch adamantly and stubbornly refuses to do it.

S1: Mark, you wrote a really fascinating piece about what I think folks thought was a Hail Mary attempt to keep folks who help participate in the insurrection of Jan. six from running for office. You don’t think it’s a Hail Mary. I think you you came to the place that that’s a pretty interesting effort.

S4: Well, I think we should distinguish between odds of success and actual merits, right? I wouldn’t say that I am optimistic that this campaign will succeed, but I think that there’s a really strong argument that it should. And just because our current political and legal environment makes it unlikely doesn’t mean we should write it off. So this is an effort to keep Madison Cawthorn off the ballot in 2022 to disqualify him for engaging in an insurrection by facilitating and inciting the Jan. six Capitol riot and the organization free speech for people that filed this complaint, which was joined by two former justices of the North Carolina Supreme Court, says, Hey, look at section three of the 14th Amendment. There is a whole provision in our Constitution that says that an individual who engages in an insurrection or rebellion against the United States is disqualified from holding public office, including a seat in Congress. And that means. Is that Madison Cawthorn simply cannot be placed on the ballot in 2022 at a bare minimum? It means that he should be obligated to explain why he doesn’t fall under this disqualification provision and he should have to explain under oath. And I think this is a really clever complaint because it turns out that North Carolina law is very friendly to this kind of procedure. There is a whole series of statutes that expressly allows for the state board of Elections to question a candidate’s qualifications for office under both state and federal law to hold hearings and investigations to order individuals to testify under oath, including, in this case, Madison Cawthorn. And I think if there’s going to be a successful complaint under section three of the 14th Amendment, it’s probably going to be this one because it is a really strong case, both on the merits of constitutional law and under this surprisingly helpful North Carolina statutory

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S1: framework and galloping through stuff. But I want to give you a chance to weigh in on flute on Blue L. It’s particularly galloping through stuff, feels very 20 22, but I want to give you a chance to weigh in Mark on the blue slip gate that’s happening in the Senate, where Republicans who have massively benefited from the blue slip policies under Trump are now super, super grumpy that they are being deployed again now in order to seat Biden judges. And I know there’s not much to say other than perhaps Nelson months, haha. But it is really fascinating to see even John Kennedy from Louisiana just being like, Dude, we did this ourselves. We can’t say this is any different, right?

S4: On the other hand, you have people like Senator Marsha Blackburn doing this performative meltdown over blue slips when she herself voted for all 14 of Trump’s appeals court picks who were, guess what? Missing blue slips. So for anyone who doesn’t know, blue slips are a process by which home state senators can make or break a judicial nominees confirmation. So when a judicial nominee hails from, say, Georgia as a courtesy, the Senate Judiciary Committee asks both senators from Georgia, Do you approve of this individual or not? And for many years, if one or both of those senators said that they did not approve of this individual by not returning their blue slip, the Senate Judiciary Committee would not consider the nomination. But under Trump, the Senate Judiciary Committee suddenly decided we don’t care about blue slips anymore, and it’s not as if I just want to be clear. It’s not as if Democrats were like abusing that blue slip process under Trump. They were not fighting every single Trump nominee to the Court of Appeals, who came from a state with a Democratic senator. They were picking their battles. And yet the Republicans on the committee decided, let’s just obliterate this entire tradition and push these guys through that. So clearly sets a precedent that current Senate Judiciary Chair Dick Durbin has decided to follow. And all I can say is good for him. Like, Come on, guys, let’s just acknowledge this one here. Like the era of blue slips for appeals, court nominees is over, and it was Republicans who ended it.

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S1: And a coda to that. But worth saying. Part of the reason that Trump had so many seats to fill was because of the Senate doing away with blue slips. In other words, they benefited from it massively in a way that Durbin cannot possibly benefit now. So even having scuttled the blue slip as veto, there’s just a lot less seats to fill.

S4: Exactly right. The blue slips were deployed liberally in the final two years of Obama’s presidency to hold open all of these really crucial and often pivotal seats on the courts of appeals so that Obama couldn’t fill them. Trump came in and guess what? Suddenly, those became Trump seats, and he flipped multiple circuit courts that way.

S1: Speaking of Senate Arcana, let’s just end on voting rights because, you know, Martin Luther King Day. Massive pieces of legislation stymied apparently by the filibuster. Give me 90 seconds on voting rights.

S4: So I think that a system is which it only requires 50 to eviscerate voting rights legislation, but it requires 60 to pass. Voting rights legislation is not a system that can support representative democracy for very long. And I think everyone on both sides knows that, and some of them lie about it and some of them don’t. I would like to stop being lied to about this. I would like for Republicans and Joe Manchin and Kirsten Cinema to just say, you know, we don’t care enough about voting rights to do the bare minimum to get these bills over the finish line and stop posturing about how they love these bills and so strongly support them. I mean, Joe Manchin basically wrote the Freedom to Vote Act, and it contains some stuff that Democrats don’t actually like. You never hear about that in coverage, but it’s not all permissive voting laws. And yet, Joe Manchin is not willing to say, OK, let’s do a tiny little carve out for this one massive and critical piece of civil rights legislation, legislation that I, myself, Joe Manchin, have acknowledged as critical. I don’t want those lies anymore. I don’t want all of this gaslighting from McConnell on the Senate floor. Let’s just be honest about what’s going on here. There are not 50 senators who care enough about racial justice and democracy and civil rights to to take the smallest steps necessary to protect every American’s right to cast an equal ballot.

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S1: Mark, I’m just really struck by the fact that you’re right up of the two vaccine cases ended with you saying maybe John Roberts just needs to sit down with Joe Biden and let’s get rid of this illusion that this these are robust statutory and constitutional questions. If it’s just going to come down to some combination of judicial feelings, ball and judicial, Calvin Barr, let’s just, you know, have the Chief Justice and Biden work out what is an OK set of COVID mitigation strategies? Is that just the world that we live in?

S4: Yes. I mean, look, it’s it’s 2022. As I wrote in that piece, the Supreme Court is the country’s most powerful and effective and functional policymaking institution. If you could get Brett Kavanaugh and John Roberts in a room with Joe Biden for forty five minutes and they could just go down a checklist of what they will allow the executive branch to do right now to rein in COVID, we would be in a much, much better place. Instead, we have to go through months and months of endless performative litigation that creates bad feelings on both sides. This is bad vibes only, and we end up with these horrible split decisions that do a lot of damage to the law that don’t make any sense and that persuade more and more Americans that the court is just a partisan institution. That last bit, I think, is a good thing because Americans should open their eyes. But I don’t think that the Chief Justice believes it’s a good thing. So yeah, I know they can’t do advisory opinions, but if we lived in any other country, that would probably be the route out of this hell. And I think it’d be a whole lot better than the options we have on the table right now.

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S1: Mark Joseph Stern covers the courts, the law, the Supreme Court, state courts, democracy itself, and gaslighting for Slate.com. You can read him on the site. Always and Mark. Thank you for being here. I wish you a meaningful day in memory of Dr. King and buckle in because 2020, to all what two weeks of it has really been eye crossing.

S4: It will only get crazier from here, but there’s no one else. I’d rather spend it with the new Dahlia,

S1: and that is a wrap for this week’s episode of Amicus. Thank you so much for listening in, and thank you so much for your letters and your questions. You can keep in touch with us at Amicus at Slate.com. You can always find us at Facebook.com Slash Amicus podcast. Today’s show was produced by Sara Burningham. Gabriel Roth is Editorial Director. Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcast. We’ll be back with another episode of Amicus in two short weeks. Until then, do hang on in there. Be kind to yourselves and to others.