NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., Applicants, v. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL., Respondents. and OHIO, ET AL., Applicants, v. ) No. 21A247 DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL., Respondents
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Amy Coney Barrett, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Sonia Sotomayor, Clarence Thomas
Interviewee(s): Scott A. Keller, Benjamin M. Flowers, Elizabeth B. Prelogar

John G. Roberts, Jr.: Justice Sotomayor is participating remotely this morning, as, in this application, Mr. Flowers from Ohio will also be participating remotely. And we will hear argument first this morning in Application 21A244, National Federation of Independent Business versus the Department of Labor, and the consolidated case. Mr. Keller.

Scott A. Keller: Mr. Chief Justice, and may it please the Court: OSHA's economy-wide one-size-fits-all mandate covering 84 million Americans is not a necessary, indispensable use of OSHA's extraordinary emergency power which this Court has recognized is narrowly circumscribed. Just three days ago, the. U.S. Postal Service told OSHA that this ETS's requirements are so burdensome for employers that the federal government is now seeking an exemption from its own mandate for the Postal Service. That's because OSHA's economy-wide mandate would cause permanent worker displacement rippling through our national economy, which is already experiencing labor shortages and fragile supply lines. OSHA has never before mandated vaccines or widespread testing, much less across all industries.

In fact, the June healthcare COVID ETS and the 1991 bloodborne pathogen rule both rejected vaccine mandates and widespread testing, and those were even just for targeting healthcare workers. And, here, OSHA's vaccine-and-testing mandate treats virtually all industries' workplaces and workers the same.

But even Congress's rescue plan identified high-risk workplaces, and OSHA itself here recited state data confirming that certain industries, like healthcare and correction facilities, are higher risk. Our nation's businesses have distributed and administered hundreds of millions of COVID vaccines to Americans. Businesses have encouraged and incentivized their employees to get vaccines.

But a single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies. So this Court should immediately stay OSHA's unprecedented ETS before Monday, when OSHA begins enforcement. I welcome the Court's questions.

Clarence Thomas: Mr. Keller, how are we to decide when an Emergency Temporary Standard or Emergency Temporary Standards are necessary? What factors do you think we should use?

Scott A. Keller: Justice Thomas, I think the first factor that you would have to look at is, is this an indispensable or essential measure that necessarily would require looking at what are the alternatives available.

You would have to also look at, necessary to what end? And it's to abate a grave danger.

And it's for an emergency.

It's in a temporary setting.

So the factors you'd want to consider are, what are the risks, and not only what are the risks for any isolated situation but compared to an everyday risk? And, here, when OSHA itself has never mandated vaccines or widespread testing before, that itself, even in its 10 prior ETSs, which courts blocked almost all of the challenges to these prior ETSs, all of those are factors that would absolutely determine the scope of what OSHA could do here. In fact, in the June ETS, what OSHA said was: "OSHA recognizes that many states have taken action to protect employees with mandatory requirements that may not be appropriate for an ETS on a national level."

Clarence Thomas: The -- the -- you know, when -- in -- in McCulloch versus Maryland, Chief Justice Marshall, in looking at necessary and proper, saw "necessary" as more expansive than that as certainly modified by "proper" or in the context of "proper." So it just suggests that "necessary" can be really necessary or not necessarily really necessary.

Scott A. Keller: And -- and --

Clarence Thomas: The -- and -- and I just think that, you know, the -- you need more than to say, oh, a lot of bad things could happen to interpret what that means.

Is it restrictive? Is it very firm? Is it super-necessary? And if it is, why?

Scott A. Keller: Justice Thomas, the -- the reason why it would be something approaching the indispensable or essential definition of "necessary" here is there's a very key intrastatutory textual clue.

The emergency power must be necessary.

The regular power that OSHA wields has to be reasonably necessary or appropriate.

Clarence Thomas: So when do we determine that? Suppose -- you argue also this is -- the vaccine's been around quite some time.

COVID has been around even longer.

So the -- the government could have had a -- a notice and comment.

So, if it's been -- if you have -- if it's susceptible to notice and comment, then how do you analyze it in that context? You can't just say, well, it's emergency; therefore, it has to be absolutely necessary.

It would seem that that would undermine your definition or your notion of "necessary."

Scott A. Keller: Well, I think Judge Larsen for the Sixth Circuit was absolutely correct in saying that just because something's temporary doesn't mean that there could somehow be more power.

And what this Court has said is this emergency power is narrowly circumscribed. And regardless of wherever the line would be drawn, I think this ETS is far past it. And I think the federal government has some serious line-drawing problems of its own. I believe OSHA, under the theory that's been advanced, could have shut down and had a national work lockdown at the beginning of the pandemic.

I would submit that this Court in Industrial Union, in saying that OSHA had no clear mandate in the Act to have that wide a power over the American industry, is also a factor that would go into this Court construing what "necessary" means in light of that.

Clarence Thomas: So the fact that it is temp -- that it's emergency sort of ups the ante, that "necessary" has to be more restrictive?

Scott A. Keller: Yes, because of plain text, the comparison within the OSH Act, also statutory context --

Elena Kagan: I --

Scott A. Keller: -- and the major questions doctrine.

Elena Kagan: -- I guess, Mr. Keller, I -- I don't understand the point. Whatever "necessary" means, whether it's necessary and proper or whether it's something more than that, why isn't this necessary to abate a grave risk? 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.

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. And this is the policy that is most geared to stopping all this.

There's nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves. So, you know, whatever "necessary" means, whatever "grave" means, why isn't this necessary and grave?

Scott A. Keller: Because, Justice Kagan, the standard for what would be necessary for this extraordinary use of emergency power is not what is the best way of accomplishing it.

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

Scott A. Keller: What OSHA needed to do here, though -- and we do not contest that COVID is a grave danger, but when -- a power for it to be necessary, for instance, the Third Circuit said in wielding what is supposed to be a delicately exercised extraordinary power, the agency has to consider and explain alternatives. The agency here complained that its non-mandatory guidance wasn't being followed and then, instead of saying that maybe some of those mandatory guidance -- some of those guidances could have been made mandatory, it jumped immediately to a vaccine-or-testing mandate. Moreover, OSHA typically --

Elena Kagan: Mr. Keller, I -- I guess I -- I just don't see this as a situation, you know, a typical arbitrary, capricious situation where we say, oh, you didn't consider an alternative carefully enough. We all know what the best policy is. I mean, by this point, two years later, we know that the best way to prevent spread is for people to get vaccinated and to prevent dangerous illness and death is for people to get vaccinated.

That is by far the best. The second best is to wear masks.

So this is a policy that basically says, we are still confronting thousands of people dying every time we look around, and so we're going to put into place the policy that we know works best, which is to strongly incentivize vaccination and to insist that unvaccinated people will wear masks and test. I mean, that's just -- like, why isn't that necessary? What else should be done? It's -- it's obviously the policy that's -- that's geared to preventing most sickness and death, and the agency has done everything but stand on its head to show quite clearly that no other policy will prevent sickness and death to anywhere like the degree this one will.

Scott A. Keller: Justice Kagan, first of all, states could have policies like this. Private businesses could have policies like this.

And even OSHA in its June healthcare COVID ETS -- and that was only for healthcare workers -- did not mandate vaccines. Instead, what it did there, similarly to how OSHA proceeds in many contexts, is it says, employers, give us a plan, and then, if there are heightened needs in particular workplaces, then additional measures can be put into place.

But this is covering economy-wide, all industries, 84 million Americans --

Elena Kagan: Well, that's if that rule --

John G. Roberts, Jr.: That's one of your main -- that -- that's one of your main objections, that this is not a workplace issue, it's -- it's an out-in-the-world issue, is that right?

Scott A. Keller: That's right, Mr. Chief Justice.

John G. Roberts, Jr.: Well, but how focused on the workplace does something have to be before you will say that OSHA can regulate it? Think, for example, of an assembly line, you know, workers sitting next to each other for a significant length of time, working together in close -- close contact.

That presents a different kind of risk than is typical in the outside world. So could OSHA say that for businesses with assembly lines, the workers must be vaccinated?

Scott A. Keller: No, not vaccinated. OSHA, though, could potentially, going by industry by industry or workplace by workplace, have measures such as what some of their guidance have suggested, like, you know, potentially barriers.

But I think all of this would be kind of --

John G. Roberts, Jr.: Well, but those are sort of -- as Justice Kagan has been -- been discussing, those are sort of, you know, not as good.

And why wouldn't OSHA have the authority to do the best approach possible to address what I guess you agree is a special workplace problem?

Scott A. Keller: Well, Mr. Chief Justice, I don't think the standard here can be the best because, if it was the best, then that would mean that OSHA could ban all people from coming into the workplace.

I think that is a power that Congress, when it created OSHA, was --

John G. Roberts, Jr.: Well, so the -- so the agency is acting, you know, less aggressively than it might otherwise do but in an effective way to address the problem.

Scott A. Keller: But, as soon as we get to the point where we're talking about a less aggressive way, there are other alternatives. There could have been plans.

There could have been the man -- the non-mandatory guidance that was then put into place.

Jumping to a vaccine-or-testing mandate when OSHA has never exercised that power is --

John G. Roberts, Jr.: Well, it is a pressing -- there is some pressing urgency to addressing the problem and to have them sit down and say, okay, what else could we do? We have to have notice -- well, notice and comment, which I guess -- are you insisting that that be part of the process?

Scott A. Keller: In this situation, yes. I mean, you have the Postal Service and Amtrak saying many employees will be -- will quit. Here, there are reports --

John G. Roberts, Jr.: Well, just because --

Scott A. Keller: -- and we have --

John G. Roberts, Jr.: -- the post office can't do it efficiently doesn't mean that private industry can't.

Scott A. Keller: But I think what this shows is workplaces are different.

And instead of doing an economy-wide vaccine-or-testing mandate for all purposes, OSHA needed to at least consider, as it identified, there are certain instances where healthcare workers and otherwise -- in those industries where there is a heightened risk, that's where there's a workplace occupational problem.

Stephen G. Breyer: Well, it is -- it's -- well, okay, I -- I want to ask a provisional question.

Are -- are you still really asking this Court now today -- I mean, I assume your arguments are -- you have good arguments in your brief, and so does the government. So I'll assume for the sake of argument that they're both fairly good arguments, okay?

Scott A. Keller: Thank you.

Stephen G. Breyer: All right.

Now that's an assumption, right, but make that assumption with me.

Are you still asking us to issue a stay and stop this from taking effect, like issue a stay today or tomorrow or Sunday or Monday or Tuesday? I mean, the reason I ask that is there are several elements, we have some discretion there, and -- and you know it was brought up. I mean, there -- there were three-quarters of a million new cases yesterday.

New cases.

Nearly three-quarters, 700-and-some-odd thousand, okay? That's 10 times as many as when OSHA put this rule in. The hospitals are today, yesterday, full, almost to the point of the maximum they've ever been in this disease, okay? And you heard references, studies, I mean, they -- they vary, but some of them say that the hospitalization is 90 percent or maybe 60 percent or maybe 80 percent, but a big percent, filled up yesterday or the day before with people who are not vaccinated, okay? So that's -- we're talking about now. And think of the stay requirements.

It's both the balance of harms.

It's also public interest.

Can you ask us -- is that what you're doing now, to say it's in the public interest in this situation to stop this vaccination rule with nearly a million people -- let me not exaggerate -- nearly three-quarters of a million people, new cases every day? I mean, to me, I would find that unbelievable.

Scott A. Keller: Justice Breyer, we are asking for a stay before enforcement takes effect Monday, and the reason for that is this is an unprecedented agency action.

Stephen G. Breyer: Yeah, yeah --

Scott A. Keller: We do not --

Stephen G. Breyer: -- I know you have all good arguments that it isn't good.

They have arguments that it is good. Okay.

I'm asking you a different question, and the question is: How can it conceivably be in the public interest with three-quarters of a million people yesterday, goodness knows how many today -- I don't want to repeat myself, but you have the hospitalization figures growing by factors of -- of 10, 10 times what it was. You have hospitalization at the record, near the record.

You have -- you have -- I mean, you understand the thing -- things as well as I.

And so I repeat my question, to me, it's unbelievable, but I want to hear what you say. How can it be in the public interest, which is a requirement, how can it be a balance of harms in this case, assuming the arguments aren't off the wall on the government's side, and believe me, they're not.

Okay, that's what I want to hear the answer to.

Scott A. Keller: Justice Breyer, states can act, private businesses have acted on historic levels.

This is going to cause a massive economic shift in the country, billions upon billions of non-recoverable costs. Testing also is not frequently available.

This is in our appendix at page 374. Among those employers who have attempted to do so, only 28 percent are able to find adequate providers to ensure that weekly testing is available for the employees. If Congress intended to give an occupational health agency the power to mandate vaccines across the country, it needed to do so clearly.

States can do it.

Businesses have done it and are able to do it. The question is not what is this country going to do about COVID.

It's who gets to decide that.

Elena Kagan: Well, who does get --

Samuel A. Alito, Jr.: And, Mr. Keller --

John G. Roberts, Jr.: Maybe, at this point, we can go justice by justice. Justice Thomas, anything further?

Clarence Thomas: Not for me.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: Oh.

I do have a couple of questions, Mr. Keller. First, the government says that the major questions doctrine and the federalism canon, for example, don't apply to this Court's consideration of this case or any other unless the statute before us is first found to be ambiguous. What's your understanding?

Scott A. Keller: Well, two points. If you need to even reach the question of whether there's ambiguity -- and we think the term "necessary" is clear in context, it has to mean indispensable or essential -- that would be a term where potentially the government in their interpretation would reach ambiguity. But, regardless, the major questions doctrine is also in service of avoiding non-delegation concerns, and the non-delegation concerns that this Court recognized in Industrial Union and citing Sharepoint --

Neil Gorsuch: I -- I -- I'm -- I'm sorry to interrupt you, but that might -- that wasn't quite my question.

I apologize if I didn't make it clear enough. But the government says that we only consult those doctrines, the federalism canon and the major questions doctrine -- I think the Court understands what they are but only consults them after finding a statutory ambiguity.

Do you disagree?

Scott A. Keller: I disagree in that the major questions doctrine is also a -- a -- a doctrine that would avoid non-delegation concerns.

So even if there were a clear statutory term, non-delegation concerns and how to interpret that statute would factor in. Regardless, I think the term "necessary" here, there's plenty of room to implement the major questions doctrine there, in addition to all of the workplace-tethered languages in the plain text and statutory context.

Neil Gorsuch: And then, secondly, I would like to understand your argument and your colleague's argument from Ohio, I believe it is, why the Court should enter a stay immediately.

I -- you've asked for immediate relief.

Why should the Court grant immediate relief?

Scott A. Keller: The short version is, as soon as businesses have to put out their plans and this takes effect, workers will quit.

That itself will be a permanent worker displacement that will ripple through the national economy. So we can talk about the billions in non-recoverable costs that the government even concedes, and we can talk about the lost profits and lost goodwill and lost business reputation, and we can talk about the businesses that are going to be put out of business.

Our appendix at pages 375 to 80 quotes many businesses saying this would be catastrophic, it would bankrupt our -- our company, it would be the most devastating event our company has ever experienced. That's why we're here.

We're asking for an extraordinary stay.

We understand the gravity of the situation.

But, in balancing the sheer size and scope of this emergency power that is supposed to be exercised delicately and the national economic implications of this when states and businesses can and have acted, we are entitled to a stay in this posture.

John G. Roberts, Jr.: Justice Alito? Sorry to have gone out of order there.

Samuel A. Alito, Jr.: No, no, fine. Mr. Keller, I just want to make sure I understand what we should focus on here.

Is the question whether this ETS is necessary to protect the health of the general public, or is it whether it is necessary to protect just employees and not even all employees but only unvaccinated employees, people who have chosen independently not to be vaccinated and do not want to be vaccinated? Is that the proper focus?

Scott A. Keller: Correct, the latter, Justice Alito.

As OSHA has said, the grave danger here is to the unvaccinated worker who is exposed to COVID.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: Yes, counsel.

I -- I quibble with that in part.

The unvaccinated worker affects other unvaccinated workers but affects vaccinated workers.

We have proof of that with Omicron.

And it's not just death, but there is illness, and for many with preexisting conditions or immunological problems, there are severe consequences even when vaccinated.

So I think the grave danger is to both. But, Mr. Fletcher, are you -- you seem to be importing into "necessary" a concept of strict scrutiny.

Am I correct?

Scott A. Keller: No, Justice Sotomayor. The "necessary" analysis does have to account for alternatives, but we're not asking anything close to a least restrictive means analysis. What we're saying is the agency --

Sonia Sotomayor: All right.

So, if you're not, I know that your experts are predicting catastrophes, but they've done -- experts opposed to OSHA regulations have done the same for decades, and the catastrophes have failed to happen.

And there are exemptions. The Post Office -- the -- the Postal Service is looking for them -- is looking at one of them. I'm sorry, OSHA is looking at one from -- from the Postal Service, and there are probably other private and public entities who can seek exemptions as well. But putting all of that aside, who makes that judgment about the seriousness of the effect? I always thought it was the agency.

It's not judges.

And it's not experts because experts have conflicting opinions. I always thought that all we had to look at was whether an agency had substantial evidence before it to conclude that all of the economic ramifications that you're speaking about -- and this is what I think they found in Earl Rebone.

Where am I wrong that that's an agency judgment? There is certainly substantial evidence to -- to support their judgment.

It's a very huge record they compiled.

They looked at a massive amount of data across many, many industries and in many, many different states.

Please tell me why, if we're going to issue a temporary stay -- and I think this was Justice Breyer's question -- we would have to accept your version of the facts as opposed to the agency's? Aren't we supposed to accept the agency's?

Scott A. Keller: I think even if you accept the agency's facts, there are now, as Your Honor just mentioned, CDC guidance contradicting foundational assumptions of this ETS.

That's in our reply brief at page 7, and Your Honor just mentioned that. But, regard -- regardless, even OSHA has said that 1 to 3 percent of employees will quit.

That is significant.

Our declarations at Appendix 308, 316, 320 --

Sonia Sotomayor: Counsel, yes, that may be true.

But we are now having deaths at an unprecedented amount.

Catching COVID keeps people out of the workplace for extraordinary periods of time.

And there have been proof in certain industries, like the medical industry, that when vaccine's mandated -- and there's no mandate here for a vaccine.

There is a masking mandate, no different than there is when we tell people that if there are sparks flying in the workplace, wear -- you have -- workers have to be provided -- have to wear a mask.

So that's no different in my mind than this. So this is not a vaccine mandate. There are costs and deaths and other things countervailing to the fact that there might be 1 to 3 percent of workers who leave.

Scott A. Keller: And, here, vaccines have been made available.

I also think there's a textual clue within the OSH Act at 29 U.S.C. 655 that --

Sonia Sotomayor: You forget that there are certain states now that are stopping employers from requiring vaccines.

There are certain states stopping employers from requiring masks.

Why shouldn't the federal government, which it has already decided in OSHA, to give -- Congress has decided to give OSHA the power to regulate workplace safety, have a national rule that will protect workers?

Scott A. Keller: Congress would have to clearly state in a statute if it wanted to give an occupational health agency the power to require employees to get certain medical treatment.

It's one thing to say --

Sonia Sotomayor: There's no requirement here.

It's not a vaccine mandate.

Scott A. Keller: Well --

Sonia Sotomayor: It's something totally different.

Scott A. Keller: -- it --

Sonia Sotomayor: And I don't know how much clearer than 651 Congress -- Congress could have been.

It charges OSHA with developing innovative methods, techniques, and approaches to dealing with occupational safety -- occupational safety and health issues. I don't know how much clearer you can be, if you're Congress, to tell an agency in an emergency do what's necessary.

I don't think Congress can do it.

Do you?

Scott A. Keller: If Congress was going to give an occupational health agency this type of power to essentially regulate directly the employee, rather than telling employers these are the types of things that you would want to do within your workplace, it would have had to provide that clearly.

And that --

Sonia Sotomayor: So what's the difference between this and telling employers, where sparks are flying in the workplace, your workers have to be -- wear a mask?

Scott A. Keller: When sparks are flying in the workplace, that's presumably because there's a machine that's unique to that workplace.

That is the --

Sonia Sotomayor: Why is the human being not like a machine if it's spewing a virus, bloodborne viruses? Are you questioning Congress's power or desire that OSHA do this? It already in 1991 told OSHA to issue regulations with respect to Hep C and B.

Scott A. Keller: Justice Sotomayor, I think that exactly proves our point, that Congress knows how to enact a statute when it wants to give OSHA power --

Sonia Sotomayor: It didn't enact a statute.

OSHA proposed regulations, it didn't act fast enough, and Congress told it to act faster.

Scott A. Keller: And --

Sonia Sotomayor: So it wasn't Congress who proposed it.

It wasn't Congress who devised it.

Congress gave OSHA the responsibility to do these things, and Congress was saying get to it.

Scott A. Keller: And what Congress said in there was not you now have statutory authority to regulate all communicable diseases.

It was bloodborne pathogens, and even that rule did not mandate vaccines or widespread testing.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: Mr. Keller, your -- your very last comment in your first part of your argument I want to come back to because your very last sentence, you said the question is, who decides? And I think that that's right.

I think that that is the question. Respectfully, I -- I think it has a different answer than the one that you give, so I'll just sort of put a different version of it to you, which is, you know, you're -- I'm sure you're right that there are all kinds of public health and economic tradeoffs that have to be made in a policy like this, all kinds of judgments on the public health side, on the economic side, how those two things ought to be balanced against each other. So who decides? Should it be the agency full of expert policymakers and completely politically accountable through the President? This is not the kind of policy in which there's no political accountability.

If people like this policy, they'll go to the polls and vote it that way.

If people don't like it, they'll vote that way. This is a publicly -- a politically accountable policy.

It also has the virtue of expertise.

So, on the one hand, the agency with their political leadership can decide. Or, on the other hand, courts can decide. Courts are not politically accountable.

Courts have not been elected.

Courts have no epidemiological expertise. Why in the world would courts decide this question?

Scott A. Keller: Congress and states and governors wielding emergency power are the ones that have the power -- and we acknowledge that -- over vaccines.

The idea that OSHA would be the agency in the federal government that's not even under the Department of Health and Human Services, that does not have expertise over communicable diseases like the FDA or CDC maybe, that would just be a very odd place for Congress to large -- to lodge such a sweeping power over the American people.

Elena Kagan: Well, OSHA has a lot of expertise about workforces and about the dangers that workforces can confront individual employees with.

And I'm sure OSHA also talked to other agencies within the federal government to consider public health issues and brought that knowledge to bear as well with its knowledge of -- of how workplaces function and -- and, again, came out with a -- a well-supported policy that has political leadership behind it and all the political accountability that one could wish for. And why is it that courts would displace that judgment and say it is up to us to decide about vaccination policy in the employment settings of this country?

Scott A. Keller: Well, first of all, what OSHA did here was not an industry-by-industry analysis.

I mean, the line it drew, for instance, with the hundred-or-more employee lines, they said they were doing that because they thought the larger companies were the ones that had the administrative capacity to do it. It wasn't because they were denser working environments.

You could have a company with a hundred employees and every single person is working somewhere else. Even the narrow exception that they have raised, even they say that 9 percent of landscapers and 5 percent of highway workers are the only ones that would qualify for their exclusively working outside exemption.

So even occupations in which you would think someone is almost exclusively working outside, they are still covered by this ETS. It's those types of internally inconsistent positions that aren't taking account of the full problem that could have been explained and should have been explained.

Elena Kagan: Thank you, Mr. Keller.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: I want to follow up on Justice Kagan's who decides question because I do think that gets to the -- the heart of this. You're relying on the major questions canon in saying that when an agency wants to issue a major rule that resolves a major question, it can't rely on statutory language that is cryptic, vague, oblique, ambiguous. But the critique of -- of that canon and the difficulty in applying it is figuring out when something is major enough.

We've applied it five or six times in the last 40 years, and you know the cases, and they're important, and we'll talk about them, I'm sure, as the argument goes on. But how -- how -- what should we look at to say this one is the kind of rule that rises to the level of the benzene rule or the tobacco rule that we found to be major? What -- what should we look at?

Scott A. Keller: So Alabama Realtors just said the sheer size and scope.

Size would account for the overall economic impact.

This covers 1.8 million establishments.

The number of people affected would be another factor. This covers 84 million or two-thirds of the private workforce.

The amount of money, King versus Burwell said billions in cost, and, here, we have that even conceded by OSHA. The scope also.

All of the 10 prior ETSs that OSHA has done, none of them have mandated vaccines.

None of them have mandated widespread testing.

Only one in June even dealt with COVID.

The rest were all workplace toxins, and most of those challenges were upheld -- or, sorry, most of those challenges were vindicated by the courts. And so the scope of what the agency has done before, in addition to the widespread effects, those would be the factors that you'd analyze. Also, is this a profound and earnest debate over a question of vast politically -- vast political and economic significance? I don't at this point believe that the federal government is contesting that this absolutely satisfies that.

Brett M. Kavanaugh: And one follow-up question.

Suppose it is major enough, so accept that position for the sake of this question.

Suppose the statutory language is general, broad, but doesn't speak specifically to the issue in question, but it is general and broad language. How do we sort out -- so you don't necessarily say the language is ambiguous.

But it also doesn't speak specifically to the issue.

How -- how would you suggest we sort out that kind of question? I realize you're going to say this language is different, but how would you sort out that kind of question?

Scott A. Keller: You look at the plain text.

From Brown & Williamson, we know you'd also look at the statutory context, and I also think the statutory context here is incredibly important. When you have the distinction between the emergency power and the regular power -- this was the dialogue earlier with Justice Thomas about necessary versus reasonably necessary or appropriate -- all of those textual clues, where powers have been lodged within the federal government, the fact that this is within the Department of Labor rather than Department of Human and Health -- Health and Human Services, also King versus Burwell too on, is this the agency that has expertise over communicable diseases? No, it's not.

Brett M. Kavanaugh: Do you think the agency could do this under its general power then?

Scott A. Keller: No, I do not think that the agency could do an economy-wide vaccine-or-testing mandate across the entire economy.

It has never done that even through its regular power.

It didn't do that in June in an ETS targeting healthcare workers, arguably the most heightened high-risk workplace.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: Mr. Keller, I want to return to the discussion you were having with both the Chief Justice and Justice Kagan earlier about whether the vaccine-or-test requirement addresses -- is necessary to address a grave danger in the workplace. I think you would be hard pressed to contest the Chief's point that there are some workplaces in which the danger to employees is different than that that they face out in the world.

A meat-packing plant or a healthcare -- the dentist. And I think what you're saying -- well, I think this is what you're saying, and I want to be sure that I understand it, that I'm correct.

I think what you're saying is that even if there are some industries or some people who would face a great risk and this might be necessary to address that risk, so, in other words, if OSHA had adopted a more targeted rule, you might not be contesting that or you would not be contesting that, that the problem here is its scope and that there's no differentiation between the risk faced by unvaccinated 22-year-olds and unvaccinated 60-year-olds or industries, you were just talking about landscapers and people who work primarily outdoors, those, and workers who work in an inside environment all day long. So is that the distinction that you're making? You're not disputing what Justice Kagan said, that, you know, this is a grave danger and that in some circumstances this rule might be necessary, but just the scope of it makes it different?

Scott A. Keller: That's right, Justice Barrett.

But -- but I just want to be very clear about this.

Wherever that line is, this ETS is so far beyond that line.

Congress identified and even OSHA identified, for instance, certain healthcare scenarios.

For instance, you know, if you're treating COVID patients or you're a scientist in a laboratory handling COVID samples and researching them, of course, that's going to be a very different case. But, here, what OSHA did was economy-wide.

It said it --

Amy Coney Barrett: Well, I understand that.

And you're saying that that's the problem.

You're not contesting that if we were talking about healthcare workers or a meat-packing plant, you're not contesting that OSHA could rely on its emergency power to impose this kind of requirement in that context.

Scott A. Keller: That's right.

I would still want to know what their explanation was --

Amy Coney Barrett: Sure.

Scott A. Keller: -- and all of the substantial evidence, but, yeah, of course, that's a very different case.

And I know that's always not a satisfactory answer.

But, here, this ETS is so far beyond healthcare workers and what Congress identified in the rescue plan as truly high-risk workplaces.

Amy Coney Barrett: Right.

So you're saying that when we take the definition of "necessary," particularly when contrasted with "reasonably necessary" and the general grant of authority, that it means something more and that when we're looking at grave danger, there had to be a more targeted industry-by-industry analysis?

Scott A. Keller: Yes.

Amy Coney Barrett: Okay.

And a follow-up.

Would you be here making these same arguments if this were just a masking and testing requirement and not the vaccine portion of it?

Scott A. Keller: Yes, I think that mandatory testing is still a mandatory medical procedure.

OSHA has never, even in a regular rule, done a blanket, widespread testing regime over 84 million Americans.

Amy Coney Barrett: What if it was just masking?

Scott A. Keller: I think we -- I don't think OSHA has the ability to set by emergency rule nationwide COVID policy.

You know, the more that we back out of this and the more we say, well, if it's not an emergency rule or if it's targeted to a particular workplace, you know, I think there can be debates about that. But, as long as they're trying to set a blanket-wide -- economy-wide policy by an emergency rule, OSHA does not have that power.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Thank you, counsel. Mr. Flowers, I don't quite know where to look, but are you still on the line?

Benjamin M. Flowers: I am, Mr. Chief Justice.

John G. Roberts, Jr.: Thank you. You may proceed.

Benjamin M. Flowers: Mr. Chief Justice, and may it please the Court: OSHA typically identifies a workplace danger and then regulates it.

But, here, the President decided to regulate a danger and then told OSHA to find a work-related basis for doing so.

This resulted in the vaccine mandate, a blunderbuss rule, nationwide in scope, that requires the same thing of all covered employers, regardless of the other steps they've taken to protect employees, regardless of the nature of their workplaces, regardless of their employees' risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate. So sweeping a rule is not necessary to protect employees from a grave danger as the emergency provision requires.

And I want to be clear that states share OSHA's desire to bring this pandemic to a close, but the agency cannot pursue that laudable goal unlawfully. I welcome your questions.

Clarence Thomas: So you're saying, Mr. Flowers, that the first step in OSHA's regulation is to identify the workforce, the problem in that workforce, and then regulate that?

Benjamin M. Flowers: That is typically how OSHA proceeds.

I don't know that there's a requirement that says they must do that, but I think part of the problems we're seeing with this rule is it's not truly intended to regulate a workplace danger; it's -- it's -- it's a danger that we all face simply as a matter of waking up in the morning.

Clarence Thomas: Well, but --

Benjamin M. Flowers: And I -- and I -- I'm sorry.

Clarence Thomas: I'm sorry to interrupt you, but I -- the other part of my question is, can a danger be so acute in the society that it is brought into the workforce and could hence be regulated by its mere presence there and by the fact that it is so acute?

Benjamin M. Flowers: It -- I think what they need -- let -- all right.

Let me answer this in two steps.

I can first define what we mean by "work-related danger" and then talk about how that applies here, and I think that'll get to your question. So, in terms of what we mean by "work-related danger," I think one way to think about that is, has the employer done or failed to do something that creates a risk the employee faces? And then the problem with applying that here is, if you look at their own explanation for what the risk is -- this is at 61411 of the Federal Register -- they say the reason there's a risk in every workplace is you interact, you come into contact with people at the workplace. When you define the risk that broadly, that is not something that's arising out of the workplace.

That's a risk we face when we wake up, when we're with our families, when we stop to get coffee on the way to work, at work, when we go to lunch, and in the evening if we go to a sporting event or a concert. So this kind of goes to Justice Barrett's question, I believe, that if they were to focus on a risk arising out of a -- a particular aspect of the workplace that creates a -- a risk of a different nature, like being packed closely together in a meat-packing plant, that could fairly be described as a work-related danger.

Elena Kagan: Mr. Flowers --

Benjamin M. Flowers: But this cannot.

Elena Kagan: Sorry.

Sorry to interrupt.

Do you know of any workplaces that have not fundamentally transformed themselves in the last two years? I mean, maybe like --

Benjamin M. Flowers: I --

Elena Kagan: -- landscapers, they work outside.

But, I mean, this idea that there are only a few select workplaces that are affected by COVID, I would have thought every workplace has been affected by COVID.

Every workplace sent their workers home.

Every workplace had to make adjustments to the way they do their business. I'm trying to figure out, like, why this is a blunderbuss approach when everybody knows from living their normal lives that every workplace has been affected by this, save for, you know, a few here and there.

Benjamin M. Flowers: So the way I would answer that is to say just about every workplace has been affected, but that doesn't mean the work is arising from the workplace. To take another example, if we look at terrorism, there's some risk of terrorism that we face when we wake up in the morning.

We face it at home, in public, and at work.

And we adjusted to that after 9/11.

If you see something, say something.

Ideas like that. Now the fact that you face that work -- that risk when you go to work doesn't make it a workplace risk.

It means it's an ever-present risk.

Elena Kagan: Well, why -- why not? I mean, this is a -- the combination of lots of people all going in to one indoor space and having to deal with each other for eight hours, 10 hours, however many hours a day, in those settings, the combination of the environment and the people that are in that environment create a risk, I would think.

I mean, tell me if I'm wrong about this.

I would think that workplace risk is about the greatest least controllable risk with respect to COVID that any person has. You know, everything else a person can control.

You can go to the baseball game or not go to the baseball game.

You can decide who to go to the baseball game with.

But you can't do any of that in workplaces.

You have to be there.

You have to be there for eight hours a day.

You have to be there in the exact environment that the workplace is set up with. And you have to be there with a bunch of people you don't know and who might be completely irresponsible. Where else do people have a greater risk than at the workplace?

Benjamin M. Flowers: Well, I think one thing, with their families, which they have to spend even more time with, especially if they have children going to school and things of that nature.

But, in response to does the risk -- I mean, of course, the risk arises at the workplace, but it's important to focus on the risk they're talking about.

They're not talking about jobs where people do congregate in settings like that that changes the nature of the risk. They say every single workplace where people come inside for even a little bit is covered.

And so they've defined the risk to mean simple human contact.

And it could be no more contact than you have at the grocery store or when you drop your kids off at school or when you go to a -- a friend's house.

Elena Kagan: Well, Mr. Flowers, in fact --

Benjamin M. Flowers: And that's the problem. We're not --

Elena Kagan: -- in fact, what -- what this rule does is it says we're not going to regulate some people.

People who work outdoors, forget about it.

People who work alone, we don't have to worry about them.

But people who work in the way that lots and lots and lots of people work, which is surrounded by other people in indoor spaces, you know, with -- without their own offices, you know, with cubicles or with -- in -- in -- in other mass settings, you know, that's where the greatest risk is.

Not just that's where the risk of ordinary life is.

That is, in fact, where the greatest risk is.

Benjamin M. Flowers: And if they had taken that approach, they would have a much better argument, but they don't because there are many jobs here, including, for example, landscapers, who may spend a little bit of time inside, five minutes a day, to get the keys or punch their time card --

Stephen G. Breyer: Well, is this right? Is this right?

Benjamin M. Flowers: -- but who are covered --

Stephen G. Breyer: What this says, what I -- I mean, my law clerks have been busy beavers on this case, I promise you, and what they have on this issue is that there are exceptions here.

There aren't exceptions business by business, but there are exceptions, those who work from home, alone, or substantially outdoors, or those who can show that their conditions, practices, means, methods, operations, or processes make their workplaces as safe and healthful as the ETA -- as the ETS can obtain a variance, okay? So they did make some distinctions.

Benjamin M. Flowers: Well --

Stephen G. Breyer: Not industry by industry, but my question really is, that I'd like to turn this to, is a stay.

You heard what I asked.

I mean, you know, 750 million new cases yesterday or close to that is a lot. I don't mean to be facetious. But that -- that -- that's why I said I would find it, you know, unbelievable that it could be in the public interest to suddenly stop these vaccinations.

And the only answer that was given was a lot of people will quit. Well, OSHA considered that.

My wonderful law clerk has 61475, 63422, 61466, 61 474 and 475, those are pages.

I don't think you should read all 61,000, but, nonetheless, there are at least five or 10 pages where they went into this, and they said, in our view, hmm, yeah, that's right, some people may quit, maybe 3 percent.

But more may quit when they discover they have to work together with unvaccinated others because that means they may get the disease.

Okay? And more will quit because they'll be -- maybe die or maybe they'll be in the hospital or maybe they'll be sick and have to stay home for two weeks.

So they did the pros and cons. So I'd like to take Justice Kagan's questions, which I think I share on the merits, and just ask you, are you asking us both still to issue a stay today, tomorrow, Monday, and why, if you are?

Benjamin M. Flowers: We are seeking an immediate -- thanks for the question.

We are seeking an immediate stay. As an initial matter, I think Alabama Realtors takes their argument about the beneficial effects of their legal action off the table.

If the Court considers it illegal, then it's not in the public interest and it's proper to enjoin it. Now the Court may say -- or stay it, rather.

The Court may decide that there's a better way to unwind the illegal action than a judicial action, and I think that's what Justice Kavanaugh's concurrence in the first Alabama Realtors got to. But what it can't do is say we judge that these are very -- in our view, this illegal action will lead to good effects, and so we will allow that to happen. To Justice Kagan's question about the who decides point, Congress tell -- told us who decides at 2112 -- 28 USC 2112 says that courts can issue stays, and the reason for that is they recognize that this was without notice and comment, and unless the courts could step in to abate illegal actions, nobody would be able to do so. And that's especially important here, where the -- the action they're, in our view, mandating but at least strongly encouraging, vaccination, cannot be undone. Finally, the other point in the public interest is one awkwardness of this situation is that the ETS is focused on what was really a different pandemic.

It's all about the Delta variant.

Now we are on to Omicron. And as my presence here as a triple vaccinated individual by phone suggests and as Justice Sotomayor suggests and as the amicus brief from the American Commitment Foundation shows, vaccines do not appear to be very effective in stopping the spread or transmission. They are very effective in stopping severe consequences, and that's why our states strongly urge people to get them.

But I think that makes it very hard to look at the numbers they give and assume that they still apply today --

Sonia Sotomayor: Counsel --

Benjamin M. Flowers: -- where things are entirely different --

Sonia Sotomayor: -- counsel, those numbers show that Omicron is as deadly and causes as much serious disease in the unvaccinated as Delta did.

The numbers, look at the hospitalization rates that are going on. We have more affected people in the country today than we had a year ago in January. We have hospitals that are almost at full capacity with people severely ill on ventilators.

We have over 100,000 children, which we've never had before, in -- in serious condition and many on ventilators. So saying it's a different variant just underscores the fact that without the -- without some workplace rules with respect to vaccines and encouraging vaccines, because this is not a vaccine mandate, and -- and requiring masking and requiring isolation of people who have tested for COVID, because none of you have addressed that part of the ETS is to say something that should be self-evident to the world but is not, which is, if you're sick, you can't come into work.

The workplace can't let you into the workplace and you shouldn't go on unmasked. Tell me what's irrational about rules of that nature when it is the workplace that puts you into contact with people that will put you at risk.

Benjamin M. Flowers: I don't know that we've argued that the requirement is irrational. And, indeed, there may be many states subject to their own state laws that could impose this themselves or private businesses.

So we're not making that there's still some --

Sonia Sotomayor: So, if it's within the police power to protect the health and welfare of workers, you seem to be saying the states can do it, but you're saying the federal government can't even though it's facing the same crisis in interstate commerce that states are facing within their own borders. I -- I'm not sure I understand the distinction why the states would have the power but the federal government wouldn't.

Benjamin M. Flowers: The federal government has no police power if we're asking about that.

Sonia Sotomayor: Oh, it does have power with respect to protecting the health and safety of workers.

We have -- we have -- accept the constitutionality of OSHA.

Benjamin M. Flowers: Yes.

I took you to be asking if they had a police power to protect public health.

They -- they absolutely have the --

Sonia Sotomayor: No, they have a police power to protect workers.

Benjamin M. Flowers: I would not call it a police power.

I think the Commerce Clause power allows them to address health -- sorry, is there a question?

John G. Roberts, Jr.: No.

But it's --

Benjamin M. Flowers: It allows them to address health in the context of the workplace.

Sonia Sotomayor: Exactly.

John G. Roberts, Jr.: It's a good time to move to our sequential questioning. Justice Thomas?

Clarence Thomas: Mr. Flowers, there's been some talk -- suggestion or at least it seems to be implied that the vaccinations are efficacious in preventing some degree of infection to others. Could you talk about that, particularly as I remember in the filings that the 18 to -- that the younger workers, the 20-year-olds who are unvaccinated are actually safer than the older workers who are vaccinated.

So there are obviously some differences. Would you just talk about how efficacious the vaccine is in the workplace?

Benjamin M. Flowers: So I want -- first, I want to be very clear.

We're -- we are strong promoters of vaccination because they do stop serious illness. In terms of stopping infection and transmission, at least with the current variant, it appears the numbers suggest to be far less effective.

But -- but -- and then, in terms of the comparison you were asking about, I think it's hard to define "grave," what the grave danger in the abstract.

What we can at least mandate or at least demand from the agency is internal consistency. And if you look at their own data, the CDC data from the last week of October, unvaccinated individuals 18 to 29 were as likely to die as vaccinated 50 to 64-year-olds and five times less likely to die than vaccinated 65 and up.

Hospitalization was -- between 18 and 49, that's not even just the young -- was about as likely as vaccinated 65 and up. If you look at the Griffin study that they cite at 61418 of the Federal -- of the Federal Register, unvaccinated and vaccinated both had low risks of death and ICU. As a societal matter, we are not debating that COVID is serious, and it has incredibly grave risk for some people, not for everybody.

And, finally, I'd point you to the Scovy Study.

Again, they cite that at 61418 of the Federal Register.

It showed that vaccinated individuals who are 65 or older are twice as likely to die as unvaccinated individuals 18 to 49.

And keep in mind that's 18 to 49, not 18 to 29.

So that's -- it would probably be even more skewed if you looked at the -- the younger demographic.

Clarence Thomas: Would the State of Ohio have the -- in your -- I'm not saying this would be an approach you would take, but we -- you had earlier a discussion about whether or not the federal government had police powers in the workforce, and you suggested that the state has those police powers. Could the State of Ohio do what you say OSHA cannot do?

Benjamin M. Flowers: In terms of -- yes, my position is the State of Ohio at least could mandate vaccinations not only for workers but for all individuals. Now I think that's an important point to stress is we're talking here as though OSHA is the only entity that can regulate this, an agency that no one thought had anything to do with the pandemic until months, if not years, into it. But we have the states and we have private businesses and they're not sitting on their hands.

And -- and individuals are doing things to try and bring this pandemic to a close or at least learn to live with it. Indeed, this Court, without any requirement from OSHA, has found ways to -- to safely conduct business.

Clarence Thomas: I think my point is rather that there seemed to be -- seems to be a suggestion that this is all or nothing, that the other governmental bodies do not have police powers to regulate certain activities. And you've answered my question.

Thank you.

John G. Roberts, Jr.: Justice Breyer?

Stephen G. Breyer: A quick question, I'm just curious.

I was searching for an example. Universal risk inside and outside the workplace, including the workplace, can OSHA regulate it? Can OSHA regulate fire risks?

Benjamin M. Flowers: Yes.

We don't draw the distinction between in -- in the workplace and out of work.

Stephen G. Breyer: Okay.

If they can regulate fire risks, then why can't they regulate this risk?

Benjamin M. Flowers: Because the difference with the fire is that there's something about the workplace, for example, not providing safety equipment to put out the -- put out the fire.

Stephen G. Breyer: Well, people throw matches.

Benjamin M. Flowers: They smoke.

Stephen G. Breyer: They smoke.

Sometime -- oh, they shouldn't, but they do.

And -- and -- or they throw a match or they -- you know, a lot of causes, such as --

Benjamin M. Flowers: Right.

That's right.

Stephen G. Breyer: -- fall -- crushing -- crushing people into -- not crushing them.

They come in the same room. You understand the point.

Okay.

The difference is?

Benjamin M. Flowers: I do.

Stephen G. Breyer: Say it again so I catch it.

Benjamin M. Flowers: Sure.

I want to be -- I want to be very clear about this.

We accept the line that's been drawn forever in Forging Industry that simply the fact that a risk exists outside the workplace doesn't mean you can't address it when it's inside the workplace. What we dispute is the idea that a risk that is ever present in all places can be regulated simply because it's also in the workplace. And so you can regulate -- to be clear, OSHA could regulate COVID-19 in the workplace when the employer does something like packing individuals very closely together in a poorly ventilated area that -- that -- that enhances or changes the nature of the risk, I should say.

But that's not the risk they say they're regulating.

Again, 61411 of the Federal Register, they say the risk is you'll come into contact with individuals. And the risk of encountering an individual is an ever-present risk we face at home, at work, and everywhere else.

John G. Roberts, Jr.: Justice Alito?

Samuel A. Alito, Jr.: I want to come back to the question I asked Mr. Keller in light of all that's been said this morning so far about public health, about the value of vaccine to -- vaccines to the general public, because I want to make sure I understand precisely what the question is before us. And what I took from Mr. Keller's answer, which seems to be right, is that the question is whether there is a grave danger for unvaccinated workers, period. What the Secretary said was "employees who are unvaccinated are in grave danger from SARS COVID virus, but employees who are fully vaccinated are not." So the -- the purpose -- if this is to be sustained, it has to be on the ground that it presents a grave danger to unvaccinated workers who have chosen to be unvaccinated. That's my understanding of the issue, but maybe I haven't understood it correctly. Is that your understanding? And I'll ask the Solicitor General the same question, or at least I hope she will address it.

Benjamin M. Flowers: That is my understanding.

And I don't see how there could be another understanding because the emergency provision specifically says that such emergency standard, meaning the precise one at issue, must be necessary to protect employees from the danger at issue.

So the broad societal effects are not -- are not at issue.

Samuel A. Alito, Jr.: And protection of vaccinated employees, who may face some danger of contracting the virus, was not the basis for this rule, is that correct?

Benjamin M. Flowers: Correct.

And I would go further and say they cannot rely at all on the risk to vaccinated workers because they conclude -- this is 61419 of the Federal Register -- that no one who's vaccinated is -- is in grave danger.

Samuel A. Alito, Jr.: Thank you.

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: Counsel, unvaccinated people you showed or you -- you pointed to young people who had a different -- or had the same death rate as vaccinated older people. But the point is that it's not the risk to the individual that's at question; it's that risk plus the risk to others.

And unvaccinated people -- and the agency has shown in its studies that unvaccinated people affect other unvaccinated people.

And they vary in age and can be of ages and of conditions where the effect will be serious, if not death.

So we're not talking -- I -- I -- I don't know how comparing apples to oranges in terms of the risk factors makes any sense. But, secondly, if the grave risk is to unvaccinated people, then how do we take that out of the equation, that it's not the risk just to them but the risk that they pose to others, including unvaccinated people?

Benjamin M. Flowers: So I'll -- I'll answer in two steps.

On the apples to oranges, I think it's vital because their -- they have to be internally consistent.

And their own logic is that nobody who's vaccinated faces a grave danger.

So unvaccinated folks of certain ages are at lower risk of death and even hospitalization, that has -- that is relevant to calculating --

Sonia Sotomayor: But lower risk doesn't --

Benjamin M. Flowers: -- the overall grave danger.

Sonia Sotomayor: -- lower risk doesn't mean no risk.

And lower risk can go into the calculus of saying I -- we see -- and that's what they said -- the risk to unvaccinated people of all ages and all conditions, and when you remain unmasked or unvaccinated, you put yourself at risk, but you put others.

Benjamin M. Flowers: Right.

Sonia Sotomayor: Others, unvaccinated people at risk and people who are vaccinated.

They may be at a lesser risk, but the grave risk remains to people of all ages and conditions that are unvaccinated.

Benjamin M. Flowers: Right, but -- but the problem is they've defined numerical probabilities that are equal to be grave in one case and not grave in the other, and that is the definition of irrational. In terms of spread, their own ETS says it's unclear the degree to which vaccinations reduce transmission.

They appear to have a positive effect, and they appear, at least with Delta and previous variants, to stop contracting it in the first place.

So, again, if you look at the American Commitment Foundation brief, it's highly doubtful that that -- that the numbers are going to be comparable when it comes to the Omicron variant.

John G. Roberts, Jr.: Justice Kagan.

Elena Kagan: Mr. Flowers, just continuing on that, if I understand your answers to Justice Thomas and to Justice Sotomayor, you basically said a couple things. You said: Well, you know, we understand that 18- to 29-year-olds, even though they're not going to die or wind up with very serious injuries, that they can spread.

You don't -- you don't doubt that, that those people spread to other people who might be more vulnerable? You don't doubt that, right?

Benjamin M. Flowers: That's right, but the problem for -- for --

Elena Kagan: Okay.

So just -- I -- I'm sorry to cut you off, but I just wanted to state that as, like, the premise.

And then the question is: Well, you said, well, the agency itself says that the danger is to other unvaccinated people, older people, immunocompromised people, whatever.

And -- and -- and you seem to be saying that because it's to other unvaccinated people, kind of they assumed the risk and the agency's power runs out.

Is that what you're saying? Because I don't know about that kind of doctrine in the OSH Act or any place else in administrative law, that because you can say that, you know, somebody would prefer not to be regulated, the agency loses its power.

Benjamin M. Flowers: That's not -- that's not quite the point we're making.

It's -- one -- it goes to two points.

The first is necessity. So, if everyone who's vaccinated is not in grave danger, then a narrower solution is, if they think have the power to vaccinate, to require the people in grave danger to be vaccinated, and they are -- they are removed from the grave danger and the other individuals are -- are not affected.

So I think that's the key point there.

Elena Kagan: Okay.

Thank you.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: Mr. Flowers, I'd like to return to the question of -- of who decides.

And I think we've all kind of come to the point where we all agree that states have -- have a wide police power under our constitutional system that Congress has to regulate consistent with the Commerce Clause and -- and make the major decisions while agencies can do the work that Congress has given them to do but not other kinds of work. And the major questions doctrine kind of regulates that interaction between Congress and agencies. So it's not that judges are supposed to decide some question of public health.

It's about regulating the rules of the system to ensure that the appropriate party does. And so the question in my mind really turns a lot on the major questions doctrine in this case.

Is this one that has been given to the agencies to decide or one that Congress has to make as a major question under our federal system? And I haven't heard a lot of discussion about that. The Solicitor General says that the major questions issue only comes into play when a statute's ambiguous, and I'd like to give you an opportunity to explain your view.

Benjamin M. Flowers: I -- I -- I think you can view the major -- the major question doctrine, the phrase is sometimes used in different contexts, and sometimes it is used as kind of an ambiguity clarifier, an elephants in mouse holes point. But another way to look at it is something of a constitutional doubt canon where we recognize that although our non-delegation doctrine is not especially robust today, there are limits on the amount of authority that Congress can -- can give away. And with respect to these major questions that are going to affect people from coast to coast and cost, you know, millions and millions of dollars and potentially many jobs and potentially infect -- affect public health, we would expect Congress -- we would demand Congress to at least speak clearly before we will say an agency can exercise that power and therefore before we're into the non-delegation issue. I -- I do want to stress non-delegation.

I mean, if they're right about work-related danger, because I understand their rule, it's any danger you could possibly face at work.

A grave danger is any danger that could even conceivably result in death, "necessary" means useful, and through a temporary and emergency standard, you can require permanent abatement. If you put all that together, this is among the broadest and most standardless delegations of authority to an agency in the United States Code.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: Yeah, I want to follow up on Justice Gorsuch's questions, which I think are important, and also Justice Kagan's questions about the policy arguments that are present here, especially in an emergency situation. So, as I understand it, you're invoking the major questions doctrine and your statutory argument to say that based on the Constitution's separation of powers, Congress must act or the states must act and OSHA lacks authority under the current statutes to do this.

That's your basic pitch, I think.

Benjamin M. Flowers: I -- I think so as long as "this" means the vaccine mandate.

We're not -- we're not disputing that they can regulate COVID-19 to some degree.

Brett M. Kavanaugh: Okay.

Yes, that's what I meant by "this." I want to give you an opportunity to explain the value of insisting on that congressional action for something like this at the federal level in an emergency situation and explain why we shouldn't defer more to the executive or defer to the executive in what has been characterized, I think appropriately, as -- as a crisis or an emergency kind of situation. What's the value of insisting on that here?

Benjamin M. Flowers: Well, one -- one value of it is that when there's an emergency, it's especially important that it be a considered, thoughtful process, and legislation is more likely to yield that.

And in an emergency, you're more likely to get broad agreement on -- on certain principles that can be enacted through Congress.

And, indeed, Congress has taken many steps to ensure that there are to address COVID-19.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: No questions.

John G. Roberts, Jr.: Thank you, counsel. General Prelogar.

Elizabeth B. Prelogar: Mr. Chief Justice, and may it please the Court: COVID-19 is the deadliest pandemic in American history, and it poses a particularly acute workplace danger.

Workers are getting sick and dying every day because of their exposure to the virus at work. OSHA amassed substantial evidence of wide-sprayed -- widespread workplace outbreaks across all industries.

It studied the science of how this virus is transmitted and found that workers are exposed to danger when they're inside together for as little as 15 minutes, and OSHA considered the extensive evidence that unvaccinated employees are at heightened risk of contracting the virus, of transmitting it to others and infecting their coworkers, and of suffering the gravest consequences, hospitalization and even death. To protect against that grave danger, the standard requires employers to adopt a policy that unvaccinated employees either get vaccinated or mask and test.

Those are commonplace and highly effective measures that OSHA determined were essential to stopping the spread of this dangerous disease at work. The Applicants try to portray this standard as unprecedented.

But this lies in the heartland of OSHA's regulatory authority. Congress charged the agency with setting nationwide standards to protect the health and safety of employees throughout the nation, and Congress specifically appropriated money to OSHA to address COVID-19 in the workplace. Nothing in the statute or the agency's regulatory history bars the use of these measures.

Just the opposite. Section 669(a)(5) of the OSH Act specifically contemplates that immunization requirements can be imposed under the Act, and OSHA has previously protected workers with measures like masking, testing, and encouraging vaccination. OSHA had statutory authority to rely on those measures here, which it found would save 6,500 lives and prevent 250,000 hospitalizations in just six months. As the preamble to the standard explains, exposure to COVID-19 on the job is the biggest threat to workers in OSHA's history. The Court should reject the argument that the agency is powerless to address that grave danger. I welcome the Court's questions.

Clarence Thomas: General, the -- what's the -- the -- the problem you're getting at? Is it the employer not providing -- making sure that employees are vaccinated or masked, or is it the employees who decline to be vaccinated or masked?

Elizabeth B. Prelogar: Well, it's the grave danger to exposure to COVID-19 --

Clarence Thomas: But who's --

Elizabeth B. Prelogar: -- at work, Justice Thomas, and --

Clarence Thomas: -- who -- who is trying -- who refuses to do that?

Elizabeth B. Prelogar: Ultimately, what the agency is doing with these standards is requiring that either through a vaccination requirement or through a masking-and-testing policy that unvaccinated workers who stand the highest chance of contracting the virus at work, of infecting others at work, and then, ultimately, if they get -- if they catch COVID at work, of then suffering death possibly or even hospitalization are protected in all of those circumstances. So I think what this standard does is it regulates employers by requiring them to adopt a policy that will directly target that grave danger.

Clarence Thomas: I -- I understand that.

But who is declining to do that? Is it the employer or the employee?

Elizabeth B. Prelogar: I think it can be both.

There are many employers around the country that have voluntarily imposed these kinds of requirements with their workers in recognition that vaccination is the single most effective way to protect workers in the workplace or that have used masking and testing requirements to the same end, so many employers are doing it.

But part of OSHA's function and what Congress charged the agency with doing is to look at those kinds of best practices and impose them through standards to ensure that workers, no matter what specific controls their employers have in place, are maximally protected.

Clarence Thomas: One last question. You make -- I think you put quite a bit of weight on the acute crisis that we're in.

But do you -- would your argument also be -- would your argument be the same for any infectious disease that is taken into the workplace?

Elizabeth B. Prelogar: No.

I think that with respect to other infectious diseases it would be necessary for OSHA to develop the record to demonstrate that the requisite risk level that the statute requires --

Clarence Thomas: But you could --

Elizabeth B. Prelogar: -- is satisfied.

Clarence Thomas: -- it's not that you would do it, but could you do it?

Elizabeth B. Prelogar: If there were, in fact, a grave danger to employees posed by another infectious disease, then, yes, we think that Congress clearly contemplated that OSHA is -- is obligated and charged with a responsibility to protect workers.

Clarence Thomas: Have you -- has OSHA ever done that?

Elizabeth B. Prelogar: OSHA has enacted any number of standards --

Clarence Thomas: Example?

Elizabeth B. Prelogar: -- that address those kinds of threats.

For example, the bloodborne pathogen standard that we have pointed to before was intended to protect employees from the risk of viruses that they can contract through bloodborne transmission. So it's not --

Clarence Thomas: Is that in -- is that in the general workplace or just in healthcare sectors?

Elizabeth B. Prelogar: That standard applied anywhere where employees can predictably encounter bloodborne pathogens.

So it wasn't just the healthcare context.

It can apply to flight attendants.

It can apply to janitors.

It was a standard that directly targeted the exposure wherever it exists, just like this one does.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: General, you said just a short while ago that this presented -- COVID presented a grave danger to people in the workplace.

In a few minutes, we'll hear an argument in the CMS case, and it will be that it presents a grave danger in Medicare and Medicaid facilities. Not here, but in the lower courts, the federal contractor mandate, the argument is going to be it's a grave danger to federal contractors. Could you give me examples of some federal agencies where you would be willing to say COVID is not a grave danger in their -- in that context?

Elizabeth B. Prelogar: Well, Mr. Chief Justice, I haven't, of course, surveyed the landscape of all of the different authorities that federal agencies can invoke.

I -- I take the point of the question --

John G. Roberts, Jr.: Well, but you represent them on a regular basis here, so you have a pretty general idea of some other examples of federal agencies. And my point obviously is that I don't think, as more and more mandates, more and more agencies come into place, it's a little hard to accept the idea that this is particularized to this thing, that it's an OSHA regulation, that it's a CMS regulation, that it's a federal contractor regulation. It seems to me that it's that the government is trying to work across the waterfront and it's just going agency by agency.

I mean, this has been referred to, the approach, as a workaround, and I'm wondering what it is you're trying to work around.

Elizabeth B. Prelogar: What we're trying to do here and what OSHA did was rely on its express statutory authority to provide -- to provide protection to America's workforce from grave dangers like this one. So I take the point and don't dispute that COVID-19 is a danger in many contexts and falls within the jurisdiction of other agencies as well, but I think to suggest that because this disease is so prevalent, because it presents such a widespread harm, somehow OSHA has less power to do anything about it with respect to the --

John G. Roberts, Jr.: No, it's not so much that OSHA has less power.

It's that the idea that this is specific to particular agencies really doesn't hold much water when you're picking them off one by -- one by one. I think maybe it should be analyzed more broadly as this is, in effect, an effort to cover the waterfront.

I'm not saying it's a bad thing. But I don't know that we should try to find, okay, what specific thing can we find to say, oh, this is covered by OSHA? What specific thing can we find to say that this is covered by the hospitals? What specific thing can we find to say, oh, no, we're doing this because this is a federal contractor? 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, well, why doesn't Congress have a say in this, and why don't the -- why doesn't this be the primary responsibility of the states?

Elizabeth B. Prelogar: Congress absolutely has a say in this, and it spoke here.

It passed the OSH Act and -- and promulgated Section 655(c) specifically to empower OSHA to take action to protect workers from grave dangers from physically --

John G. Roberts, Jr.: When did it -- when did it do that?

Elizabeth B. Prelogar: The OSH Act was enacted in 1970, I believe.

And the agency, as it explained in the preamble to this rule, documented substantial evidence to show why this constitutes a grave danger in the workplace.

John G. Roberts, Jr.: Well, I don't think you can say that that's specifically addressed -- addressed to this problem.

Elizabeth B. Prelogar: Well, Mr. Chief Justice, the Court obviously has a statute in front of it that it needs to examine.

I think that there is no doubt that COVID-19 constitutes a physically hazardous agent within the meaning of this provision.

I think that the immediacy and magnitude of harm here clearly constitutes a grave danger. Unvaccinated workers stand a 1-in-14 chance of being hospitalized, a 1-in-200 chance of dying. The country hasn't --

John G. Roberts, Jr.: It sounds like the sort of thing --

Elizabeth B. Prelogar: -- seen numbers like that --

John G. Roberts, Jr.: -- it sounds like the sort of thing that states will be responding to or should be or -- and that Congress should be responding to or should be, rather than, agency by agency, the federal government, the executive branch, acting alone, is responding to it.

And we're supposed to say, well, yes, this is a CMS problem; yes, this is an OSHA problem; yes, this is a federal contractor problem.

The military is on its own; they take orders. But, again, I guess I'm just repeating myself.

It seems to me that we should be looking at it as an across-the-board issue, as opposed to let's see what OSHA looks like, let's see what CMS looks like.

Elizabeth B. Prelogar: Well, I think that you --

Sonia Sotomayor: General, this is -- I'm sorry.

Go ahead.

John G. Roberts, Jr.: Go ahead.

Elizabeth B. Prelogar: I was just going to say, Mr. Chief Justice, that I think the Court, in approaching issues of statutory interpretation and looking at agencies' regulatory authority, has always started with the text that Congress enacted for purposes of understanding whether the agency has power to act.

And the fact that there are other agencies here that likewise, we think, are empowered to act to present -- to protect America against what is -- what is happening in this country right now shouldn't diminish the force of the express statutory authorization here.

Stephen G. Breyer: Yeah, but I think the question is this.

I mean, it is a rather deep -- in a sense, a deep question.

Can you -- or maybe you did.

Could the White House, say, issue an order to all federal employees, and what it says is every federal employee in any agency who has authority under a statute, which means all of them, to require those whom they regulate to insist that their employees be vaccinated, do it? Now they can't legally tell you do it. But it's a strong policy.

And that's what's happened.

Now I don't know the implications of that.

I never thought of that.

But I think that's what you're being asked, is that -- is that -- and -- and I don't know if you ever thought of it.

But, I mean, has that happened?

Elizabeth B. Prelogar: I think it's incorrect to say that that is what is happening here.

This policy clearly --

Stephen G. Breyer: Yeah, but, I mean, has that happened generally? Has that happened? Did somebody issue such an order?

Elizabeth B. Prelogar: Justice Breyer, standing before you today, I'm not sure that I can think of a precise historical example of that kind of order.

Stephen G. Breyer: No, no, I mean in this instance.

The answer -- your answer, I take it, is no, there is no such order.

Elizabeth B. Prelogar: That's right.

I mean, certainly, I think that -- that throughout this nation there is --

Stephen G. Breyer: I don't want to put words in your mouth.

Don't tell me there isn't such an order if there is.

Elizabeth B. Prelogar: No, I'm not aware of any such order.

Stephen G. Breyer: All right.

Or something like that, okay.

I have one other question, which is because I'm operating between two things.

One is the -- the merits, which might be difficult.

I don't know.

I'm not taking a view on that, but at least they're difficult and could take time. And the other is the question of a stay.

Now, on the question of a stay, I read from research that we've done, but I don't know if it's right, that the argument was -- what about the argument that they've made? One is that, well, if we issue a stay today, tomorrow more people will stay home and things will get worse.

See? That was one of their arguments. And the other argument -- well, all right, what about that? That seemed to me to be the main one.

Elizabeth B. Prelogar: As I understand the argument, they're concerned about worker attrition with respect to that -- that particular claim.

Stephen G. Breyer: Yeah.

Elizabeth B. Prelogar: And the agency gave sustained attention to this very issue.

It spanned several pages of the Federal Register. The agency looked at surveys that attempt to analyze how workers will respond and looked at the real, on-the-ground practical experience of companies that had imposed these kinds of mandates and found that there was substantial compliance levels and that the concern that workers would leave in droves was -- was misplaced. And then the agency further emphasized that it had provided flexibility to employers to adopt a mask-and-test policy instead of a vaccination requirement specifically because the employers are best positioned to understand --

Stephen G. Breyer: Yeah.

Okay.

Okay.

Elizabeth B. Prelogar: -- their workforce and to know which of these options is going to ensure maximum compliance.

Samuel A. Alito, Jr.: On this --

Stephen G. Breyer: What about on the merits? I just have one other, which is on the merits.

You've heard and you've read the argument on the other side that, look, what OSHA could easily have done or should have done is go through industry by industry or groups of industries by groups of industries and -- and say there's this here and there's that there. Instead, what they did is everybody over a hundred employees, except for, and then they had a few exceptions, working alone, working at home, a religious exemption, you can prove to us that you have some other thing that's just as good.

You know, they went that way, across industries instead of one by the other.

That's one of their arguments. What would you say to that?

Elizabeth B. Prelogar: My response to that is that the Secretary here cited overwhelming scientific and medical evidence that the grave danger exists based on how this virus is transmitted anywhere people gather indoors together. And that applies to a lot of workplaces, but that just turns on the nature of how this virus is communicable between people.

As -- as Justice Kagan noted, often employees have little control over their work environments.

They can't control whether they can socially distance, who they come into contact with, what precautions those people are taking, what ventilation systems exist.

And, ultimately, OSHA determined that anywhere there is a risk of indoor transmission, there is a grave danger to unvaccinated employees. Now I take the point, as the Chief Justice's hypothetical focused on -- I think Justice Barrett focused on this as well -- that there are certain workplaces -- factories, assembly lines -- where the risk is even graver, where the danger and the -- the chance of transmission is heightened.

But I don't think that that in any sense calls into question the Secretary's determination that there is a baseline grave danger in any worksite where that inside risk of transmission can occur.

Samuel A. Alito, Jr.: Can I ask you a question --

Sonia Sotomayor: General, can we -- I'm sorry.

John G. Roberts, Jr.: Justice Alito.

Samuel A. Alito, Jr.: I just wanted to ask you a question on this issue of the commencement of enforcement and the issuance of a stay. This ETS was issued a couple of months ago, isn't that right?

Elizabeth B. Prelogar: On November 5. That's correct.

Samuel A. Alito, Jr.: Yeah, on November 5. All right.

And it hasn't been enforced during that period.

These cases arrived at this Court just a short time ago.

They present lots of difficult, complicated issues.

We have hundreds of pages of briefing.

We're receiving very helpful arguments this morning. Does the federal government object to our taking a couple of days maybe to think about this, to digest the arguments before people start losing jobs?

Elizabeth B. Prelogar: Well, Justice Alito, if you're asking whether it would be appropriate for the Court to issue a brief administrative stay, certainly, we think that that would be within the Court's prerogative if it -- if it thinks that it's necessary to do that. Ultimately, for the injunction that they're actually asking for here, the Applicants would have to show an indisputably clear right to relief, which we think they can't satisfy.

Samuel A. Alito, Jr.: Well, I -- no, I'm asking about an administrative stay.

I won't get into an argument about indisputably clear. But your argument -- your point is you think it would be appropriate or would not be appropriate if we issued a short administrative stay? Or if we do that, are you going to say, well, they're causing people to die every day?

Elizabeth B. Prelogar: We do think that the agency found that there is grave harm every day, and the numbers are stark, thousands of lives --

Samuel A. Alito, Jr.: But there was that grave harm during every single day --

Elizabeth B. Prelogar: -- hundreds of thousands of hospitalizations over six months.

Samuel A. Alito, Jr.: -- but was there not that same grave harm during every single day between the time when this was issued and -- and today?

Elizabeth B. Prelogar: Well, certainly, we think that the harm has existed and been present throughout, and the agency specifically set aggressive compliance deadlines to --

Samuel A. Alito, Jr.: Well, my answer -- I asked a really simple question.

And you have the prerogative to say, no, we think, you know, horrible consequences are going to -- are going to ensue if you issue even an administrative stay of a short period of time, and we don't think that you need to have that time to digest this case and decide it.

Elizabeth B. Prelogar: I'm not going to say that, Justice Alito.

If the Court believes that it needs a brief administrative stay, then, of course, it can enter it.

Elena Kagan: But you mean "brief," don't you?

Elizabeth B. Prelogar: Yes.

We think that there are lives being lost every day.

John G. Roberts, Jr.: Well, brief compared --

Stephen G. Breyer: I thought 750 --

John G. Roberts, Jr.: I'm sorry. Brief compared to what? The months that it -- excuse me -- the months that it hasn't been in effect since November, whatever it is, when the courts have been active in this area, or brief -- brief compared to what?

Elizabeth B. Prelogar: Well, Mr. Chief Justice, I think that the agency well explained that the employers who are covered by this needed time to come into compliance.

The agency announced that it was exercising enforcement discretion because of the confusion that had been created by the Fifth Circuit stay. Maybe it would be helpful for me to explain exactly what the January 10 deadline means with respect to compliance.

The agency has announced that for employers who are acting in good faith, it is not going to enforce any of the provisions of this ETS until January 10. And what that means as a practical matter is that employers need to be adopting their policies, they need to be ascertaining the vaccination status of their employees, and as of January 10, they need to be requiring masking for any employees who remain unvaccinated. So it's not as though immediately employee -- employees are going to be quitting their jobs or leaving in response with the worst predictions.

On January 10, if this standard remains in effect, then masking will immediately be required, and the testing will kick in on February 9.

Stephen G. Breyer: So, if we delay that one day, maybe I'm wrong, and please tell me if I am, but the numbers I read is, when they issued this order, there were approximately 70-something thousand new cases every day.

And yesterday there were close to 750,000. So, if we delay it a day and if it were to have effect, then 750,000 more people will have COVID who otherwise, if we didn't delay it, wouldn't have? I mean, I -- I don't doubt the power of the Court to issue a stay. I'm just saying, what are the consequences of that? And if I'm wrong, you better tell me I'm wrong because I -- I thought that it really did make a difference to people who might get -- you have the numbers.

I saw the numbers. Well, all right, what -- so what -- what do you say? Now you say does not -- that's really not a problem?

Elizabeth B. Prelogar: Justice Breyer, we -- we absolutely agree that this pandemic has been dynamic, that it is constantly evolving and that the current conditions are -- are posing a truly grave danger.

Sonia Sotomayor: General, am I to understand from your previous answer that enforcement qua testing doesn't occur until February 9, correct?

Elizabeth B. Prelogar: That's correct, Justice Sotomayor.

Sonia Sotomayor: The only thing that would happen in the next few days or -- up to now, everybody should have a plan in place, correct?

Elizabeth B. Prelogar: Correct.

Sonia Sotomayor: There's no -- been no stay.

So starting tomorrow, the only thing that are required are masks, correct?

Elizabeth B. Prelogar: Masking for unvaccinated workers, that's correct.

Sonia Sotomayor: That's the only thing that occurs.

And so, until February 9, when the testing comes into effect, that's when the threat of -- of resignations or expense comes into effect, correct?

Elizabeth B. Prelogar: Yes, as I understand the -- what the Applicants are arguing here, especially --

Sonia Sotomayor: So --

Elizabeth B. Prelogar: -- on the testing aspect.

Sonia Sotomayor: -- so the need for an administrative stay, if we're talking about a few days, is really small, if -- very small, correct?

Elizabeth B. Prelogar: I certainly myself do not think an administrative stay would be warranted here, but I of course defer to the Court on that.

Sonia Sotomayor: All right.

One other question if I might --

John G. Roberts, Jr.: I'm sorry, I don't believe I was --

Sonia Sotomayor: -- counsel. I want to go back to the Chief's question and to Justice Thomas's question and -- and in part, to Neil -- to Justice Gorsuch's questions earlier, the issue of who should act and who can act. An agency takes a while to act, and this is -- and it's acting under an emergency order or an emergency statutory delegation by Congress.

And the Chief says, Congress should act; we shouldn't let every agency act. Could you speak about the relative both expertise and speed with which Congress can act in -- to survey the countless worksites in our economy to identify the health and safety hazards in each one and to legislate with the granular specificity necessary -- necessary to address the hazards in all of these different workplaces? I understood the fact that in an emergency we should not violate the Constitution, but I'm not quite sure what regulation of safe and healthy, what provision of the Constitution it violates. But I want you to get to the -- to -- to the general question some of my colleagues have raised.

Who's in a better position to act and why and why is it in a better position to act constitutionally?

Elizabeth B. Prelogar: Yes.

Of course, Justice Sotomayor. To be clear, we think that Congress has already acted here in passing Section 655(c) to authorize OSHA to take this kind of swift action in response to an emergency situation. If you look at the plain text of the statute, we think that OSHA's standard clearly falls within the terms that Congress enacted. COVID-19 is a grave danger, it's a physically harmful agent, and the agency found that these measures are essential to protect workers. So we think that the statutory language already exists.

And to the extent that the Applicants are suggesting that there's some kind of specific authorization requirement here that Congress had to do more, I think that gets to the heart of your question, which is that when this Court has interpreted statutes before, it hasn't departed from plain meaning and imposed that kind of burden on Congress to legislate with that specificity and that granularity, particularly in an emergency situation like this one. And the Applicants have pointed to no aspect of the statute that would warrant that kind of result here.

It's their interpretation that runs counter to express statutory provisions, Section 669(a)(5), that specifically contemplates that immunization requirements can be imposed, the American Recovery Plan Act that -- where Congress specifically appropriated $100 million to OSHA and directed it in -- in the words of the legislation to carry out COVID-19-related worker protection activities.

John G. Roberts, Jr.: Well, you're -- you're saying that Congress acted. Don't -- don't complain that Congress hasn't done anything and that -- you know, that was 50 years ago that you're saying Congress acted.

I don't think it had COVID in mind.

That was almost closer to the Spanish Flu than it is to today's problem. Now I understand the idea that agencies are more expert than Congress, and I understand the idea that they can move more quickly than Congress.

But this is something that the federal government has never done before, right, mandated vaccine coverage?

Elizabeth B. Prelogar: It's true that there has been no standard that looks exactly like this one.

The federal government has encouraged vaccination as this standard does in other provisions like the bloodborne pathogens standard.

And masking and medical testing of employees are common features of OSHA standards.

John G. Roberts, Jr.: Well, is -- is -- is it that important consideration that we should take into effect, for example, along with the fact that the police power to take such action is more commonly exercised by the states, and we've had many cases coming out of the states and municipalities that -- that give -- that -- that evidence that. And also that it's -- yes, 50 years ago Congress passed a general provision, but I think it's certainly hard to argue, and you're doing a good job of it, that that gives free rein to the agencies to take -- I guess this is invoking the major cases doctrine, that it gives free rein to the agencies to enact such broad regulation that is -- was certainly unfamiliar to Congress in 1970.

Elizabeth B. Prelogar: Well, there are a lot of elements to that question.

I'd like to try to take them in turn. I -- I -- I think that Congress did specifically contemplate that there would be emergency situations that posed grave dangers to workers throughout America, and it specifically empowered OSHA to take action in response to that. I understand the -- the suggestion here that the standard is unprecedented, but I don't think it withstands scrutiny.

If you look at the various claims that the Applicants are making, they -- they first object to the scope of the standard, the number of employers who are covered, but OSHA commonly issues nationwide standards that govern all employers throughout the nation with respect to risks that exist throughout the nation, and that describes COVID-19.

There is substantial evidence here to justify the scope of the standard. With --

John G. Roberts, Jr.: Thank -- go ahead.

Elizabeth B. Prelogar: And just to -- to close the loop with one final response, which is to focus on the particular mitigation measures.

There too, we think that there is no indication that Congress couldn't have anticipated or intended OSHA to use these types of measures to combat a deadly virus at work. Immunization is specifically referenced in Section 669(a)(5).

It is the single most effective way to target the spread of a deadly virus, and to think that Congress would have meant to preclude OSHA from encouraging vaccination, I think, is inconsistent both with the text of the statute and with the broader history of immunization requirements in this country, which have commonly been imposed.

John G. Roberts, Jr.: Thank you, counsel. Justice Thomas, anything further?

Clarence Thomas: Just I'm -- I'm curious.

This probably doesn't go to the disposition of this matter, but is a vaccine the only way to treat COVID?

Elizabeth B. Prelogar: It is certainly the single most effective way to target all of the hazards OSHA identified, both the -- the chances of contracting the virus in the first place, the risk of infecting other workers on the worksite, and with respect to the negative health consequences, that vaccination provides protection on all of those fronts.

Clarence Thomas: Thank you.

John G. Roberts, Jr.: Justice Breyer, anything further? Justice Alito?

Samuel A. Alito, Jr.: On the issue of whether you're trying to squeeze an elephant into a mouse hole and the question of whether this is fundamentally different from anything that OSHA has ever done before, I want to see if it might be fundamentally different in at least two respects and get your answer to -- to the question. Most OSHA regulations, all of the ones with which I'm familiar, affect employees when they are on the job but not when they are not on the job.

And this affects employees all the time.

If you're vaccinated while you're on the job, you're vaccinated when you're not on the job. Isn't this different from anything OSHA has done before in that respect?

Elizabeth B. Prelogar: So two responses to that.

First, of course, there's also a mask-and-test option here, so I think even --

Samuel A. Alito, Jr.: Okay --

Elizabeth B. Prelogar: -- on that --

Samuel A. Alito, Jr.: -- well, right now --

Elizabeth B. Prelogar: -- analysis --

Samuel A. Alito, Jr.: -- I'm talking just about the vaccine.

Elizabeth B. Prelogar: So focusing just on vaccination, I think that that's a way to describe it, that it also provides protection when you're not at work. But OSHA was directly targeting and -- and trying to provide the protection at work, and I don't think there's any basis in the text of the statute to think that this kind of --

Samuel A. Alito, Jr.: All right.

Suppose that --

Elizabeth B. Prelogar: -- protection is off limits.

Samuel A. Alito, Jr.: -- I mean, suppose -- this is a little science fiction, but maybe it will illustrate a point. Suppose that this protection were provided not by the administration of a vaccine but by waving a wand over employees when they arrive at work, and suppose that wand also had the capability of taking away this protection when the employee leaves work. Would OSHA have the authority to tell employees you must -- we will -- we are going to wave -- you must have this wand waved over you when you arrive, but you can't have it taken off when you leave?

Elizabeth B. Prelogar: No, I don't think that OSHA would have that authority.

Samuel A. Alito, Jr.: All right.

So it's different in that respect.

And here's another respect in which it may be different.

And I don't want to be misunderstood in making this point because I'm not saying the vaccines are unsafe.

The FDA has approved them.

It's found that they're safe.

It's said that the benefits greatly outweigh the risks.

I'm not contesting that in any way.

I don't want to be misunderstood.

I'm sure I will be misunderstood.

I just want to emphasize I'm not making that point. 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 and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences? Is that not true of these vaccines? And if that is -- is that true?

Elizabeth B. Prelogar: That can be true, but, of course, there is far, far greater risk from being --

Samuel A. Alito, Jr.: But there are --

Elizabeth B. Prelogar: -- unvaccinated --

Samuel A. Alito, Jr.: -- there is -- there --

Elizabeth B. Prelogar: -- by orders of magnitude.

Samuel A. Alito, Jr.: Right.

There is some risk, do you dispute that?

Elizabeth B. Prelogar: There can be a very minimal risk with respect to some individuals, but -- but, again, I would emphasize that I think that -- there would be no basis to think that these FDA-approved and authorized vaccines are not safe and effective.

They are the single-most effective.

Samuel A. Alito, Jr.: No, I'm not making that point.

I tried to make it as clear as I could.

I'm not making that point.

I'm not making that point.

I'm not making that point. There is a risk, right? Has any other -- has OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk, on the employee, so that if you have to wear a hard hat on the job, wearing a hard hat has some adverse health consequences? Can you think of anything else that's like this?

Elizabeth B. Prelogar: I can't think of anything else that's precisely like this, but I think that to suggest that OSHA is precluded from using the most common, routine, safe, effective, proven strategy to fight an infectious disease at work would be a departure from how this statute should be understood.

Elena Kagan: Can I just say, General, that regulators think of risk/risk tradeoffs constantly when they make regulations, that there are constant situations in which there are risk/risk tradeoffs, risks on both sides, but one risk vastly outweighs another risk and that that comes up throughout regulatory space.

Elizabeth B. Prelogar: That's absolutely true.

And one of the risks that OSHA was guarding against here was the risk that unvaccinated workers posed to other workers because they are so much more likely to transmit --

Samuel A. Alito, Jr.: To other --

Elizabeth B. Prelogar: -- this deadly disease to them.

Samuel A. Alito, Jr.: -- what type of workers? To other -- to vaccinated workers?

Elizabeth B. Prelogar: Yes, the grave danger finding --

Samuel A. Alito, Jr.: I thought the --

Elizabeth B. Prelogar: -- was based on unvaccinated --

Samuel A. Alito, Jr.: -- Secretary --

Elizabeth B. Prelogar: -- workers.

Samuel A. Alito, Jr.: -- disclaimed that.

Elizabeth B. Prelogar: Yes.

The grave danger finding is limited to unvaccinated workers --

Samuel A. Alito, Jr.: Right, so that's not --

Elizabeth B. Prelogar: -- who are far more likely to --

Samuel A. Alito, Jr.: -- a concern for us?

Elizabeth B. Prelogar: -- contract it from their coworkers as well.

Samuel A. Alito, Jr.: That's not a concern for us, is it? We can't sustain this on that ground, that this is helpful to the vaccinated workers because the unvaccinated workers present a risk to them.

Elizabeth B. Prelogar: Oh, to be clear, they present a risk to other unvaccinated workers --

Samuel A. Alito, Jr.: All of whom have --

Elizabeth B. Prelogar: -- who might be older --

Samuel A. Alito, Jr.: -- all of --

Elizabeth B. Prelogar: -- who might have other comorbidities --

Samuel A. Alito, Jr.: -- all of whom have balanced the risks differently, maybe very foolishly, but they want to balance the risks presented to their health in a different way. And OSHA says, no, you can't do that, and that applies when you're on the job and also when you're not on the job and for the rest of your life because you have to take these vaccines, unless the testing option is viable.

Elizabeth B. Prelogar: Well, one small factual correction if I could and then a broader legal point.

I think it's wrong to say that everyone who's unvaccinated is just assuming the risk.

Some people can't get vaccinations for medical reasons.

Some people have deeply held religious beliefs and are entitled to religious exemptions.

And OSHA is entitled to try to protect those unvaccinated workers, no matter the reason they're unvaccinated. Just on the broader legal point, the idea that OSHA is powerless to act to protect workers if they simply want to assume the risk is inconsistent with how the OSH Act has been understood throughout its history.

OSHA frequently requires employers to require that the employees use protective gear --

Samuel A. Alito, Jr.: No, but isn't -- isn't it --

Elizabeth B. Prelogar: -- or take precautions.

It's not --

Samuel A. Alito, Jr.: -- isn't it the case that, most of the time, there's this strong reason for saying that it isn't a defense to an OSH Act charge, that the employers assumed the risk voluntarily, that under most circumstances, employers have an incentive to avoid compliance with, to avoid the cost and inconvenience of a regulation, and so we don't want to have the -- put the employees under pressure, overt or implied, to -- to waive the protection of a -- a regulation, a protective regulation? But there's no such incentive here. They're free.

The vaccines are free.

And to the extent they keep workers healthy and on the job, it's in the interests of the employers to have them vaccinated.

Elizabeth B. Prelogar: Well, certainly, the -- the fact that workers in the past have not wanted to use certain protections has not provided a defense to regulations that have been issued under the OSH Act.

Sonia Sotomayor: Counsel, if I might just go back to Justice Alito's question, there's no vaccine mandate here, correct?

Elizabeth B. Prelogar: That's correct. And that's what I started with, that, of course, any employer can opt for the mask-and-test option instead.

Sonia Sotomayor: So, really, the question is between masking and testing and/or vaccine, but no employer is being put at risk greater than they choose to undertake themselves, correct?

Elizabeth B. Prelogar: Yes.

The -- the employers have a choice to adopt either of those policies.

And OSHA estimated that 40 percent of employers would adopt the mask-and-test policy.

Sonia Sotomayor: Number two, with respect to the issue of whether a person has chosen to run the risk by being unvaccinated, you point out that some people can't for a variety of different reasons.

But the risk here is not just to the person; it's to everybody else they put at risk, correct?

Elizabeth B. Prelogar: That's correct. The grave danger finding was premised on unvaccinated individuals, but OSHA emphasized that ensuring that unvaccinated individuals are not spreading the virus in the workplace will protect everyone they come into contact with.

Sonia Sotomayor: So they may not be a grave danger to other -- other people, but I don't see why OSHA has to close its eyes to the fact that they place grave risks to unvaccinated and substantial risk to other people, correct?

Elizabeth B. Prelogar: That's right, and OSHA specifically emphasized that vaccinated individuals may still be at significant risk. It wasn't ruling out that possibility.

Its grave danger finding was focused on all of the ways that -- that being unvaccinated contributes to the spread of this disease.

Sonia Sotomayor: Thank you, counsel.

Samuel A. Alito, Jr.: Is the testing alternative viable at the present time in light of the stories that we see about the long lines that are required to be tested?

Elizabeth B. Prelogar: The agency gave sustained attention to testing capacity in the preamble to the rule.

It looked at existing testing capacity and projected out of what additional capacity would be necessary for employers that choose to adopt the mask-and-test policy and concluded that there would be ample testing in order to comply with the rule. I'm obviously familiar with the -- the news stories that you're referencing, and I think that the agency could adjust if that proves to be a problem, but with respect to reviewing this rule, there was certainly a substantial basis for the Secretary to conclude that this was a viable option.

John G. Roberts, Jr.: Justice Kagan?

Elena Kagan: General, I'd like to ask the -- the -- the government's views of the major questions doctrine that a number of my colleagues have asked about. And as I -- I see it, there are sort of two ways that such a doctrine could operate. One is with respect to ambiguous statutes, ambiguous either because they're vague or because there are statutes that seem to have conflicting provisions, you know, where they point both ways, and then the major questions doctrine is an aid to interpretation of that statute.

It's essentially a kind of clue about how you should interpret a very difficult-to-understand statute. And the second way is there's really nothing difficult to understand about this. The agency action falls within the scope of the statutory authority.

There's just no question that it does.

And yet, because the agency action is kind of a big deal, we're just going to ignore the fact that it falls clearly within the scope of the delegated authority and say that, notwithstanding that that's true, Congress has to re-up it. So I think I'd like you to talk about those two versions of the major questions doctrine with respect to this rule.

You know, does -- what do you think of those two versions, and which of the versions potentially applies here?

Elizabeth B. Prelogar: I think that perfectly encapsulates the two versions.

And we think that this Court's precedents clearly demonstrate that it's the first version that you articulated is the way that the Court has previously considered economic and political consequences. So it's never been the case that the Court has started at the outset by saying does this seem like a big deal, does this agency action have a lot of consequences, and then used that as a basis to depart from the plain language of the statute or to say Congress has to specifically authorize it; we're not going to give the statutory text its -- its ordinary meaning. Instead, in the cases where the Court has looked at those kinds of consequences, it has always identified a conflict with other express statutory language, a conflict with other statutes that Congress has enacted that directly addressed the issue at question, or a conflict with the entire structure of the statute such that it would be unrecognizable to the Congress that enacted it. And it's only been in those situations where the Court has identified a textual and structural problem with the agency's interpretation in the beginning, using those traditional tools of statutory construction, that the Court has then gone on to say that its interpretation of the statute is confirmed by the economic and political consequences that would ensue. So I think it would be a sea change for this Court to reverse the order of operations as the Applicants are asking for here and to start off by asking does this seem like it has economic and political consequences, and it would ultimately do a disservice to principles of the separation of powers and to -- to Congress's ability to have its clear statutory enactments, even if they're broad, given the effect that they have.

John G. Roberts, Jr.: Justice Gorsuch?

Neil Gorsuch: Yes.

So my -- my question with respect to the major questions doctrine is this: We accept that it's not our role to decide public health questions, but it is our important job to decide who should decide those questions. I think we all agree on that.

And, here, our choice on the one hand is a federal agency and on the other hand the Congress of the United States and state governments. Now you argue we should not consider the major questions doctrine unless and until we find a statutory ambiguity.

I understand that.

But let's -- let's say the Court does find such an ambiguity.

I know you'll contest the premise, but let's just work on it. If -- if there is an ambiguity, why isn't this a major question that, therefore, belongs to the people's representatives of the states and in the halls of Congress, given that the statute at issue here is, as the Chief Justice pointed out, 50 years old, doesn't address this question. The rule affects, I believe, we're told, 80 million people, and the government reserves the right to extend it to every private business in the country. Traditionally, states have had the responsibility for overseeing vaccination mandates.

I rejected a challenge to one just the other day from New Mexico. Congress has had a year to act on the question of vaccine mandates already.

As the Chief Justice points out, it appears that the federal government is going agency by agency as a workaround to its inability to get Congress to act. The risks imposed here are not unilateral.

There are risks to those who choose not to be vaccinated that they're trying to avoid sometimes, as you discussed with Justice Alito and conceded to him. Traditionally, OSHA has had rules that affect workplace hazards that are unique to the workplace and don't involve hazards that affect individuals 24 hours a day. So that's kind of the general tick list we have before us, and I'd just like you to address, again, the question, assuming the statute's ambiguous, why isn't this a major question that normally under our Constitution would reserve -- be reserved for the people's representatives in the states in the first instance and in the halls of Congress in the second?

Elizabeth B. Prelogar: So accepting the assumption that there's an ambiguity, which, of course, we disagree with, as you know, I think that many of the factors you identified are just simply inconsistent with the whole premise of the OSH Act. So it's true that states have a police power over health and safety.

But, as this Court recognized in the Gade case, Congress in enacting the OSH Act specifically brought the federal government into the role of protecting the health and safety of America's workers and displacing and preempting state law in that field. And so I think the idea that simply because states have that residual police power provides a basis to assume that the OSH Act can't have any application or that there has to be a specific authorization here of each and every type of mitigation measure is just fundamentally inconsistent with Congress's policy as embodied in that Act.

Neil Gorsuch: What do we make of the fact that Congress -- that OSHA has not traditionally mandated other vaccines for other hazards that could be -- pose a graze -- grave risk, some might say? The flu kills people every year.

Other grave diseases do too.

And there are vaccines against many.

And -- and we don't need to list them all. But, traditionally, OSHA has not regulated in this area.

Elizabeth B. Prelogar: I think that that's explained by the fact that COVID-19 is an unprecedented pandemic that has a magnitude and proportion that --

Neil Gorsuch: Well, polio --

Elizabeth B. Prelogar: -- OSHA has never seen before.

Neil Gorsuch: -- I mean, people forget polio.

That was a pretty bad, you can call it a pandemic, you can call it an endemic, I don't know what you'd call it, but it was a terrible scourge on this country for many years. We have vaccines against that -- that, but the federal government through OSHA, so far as I know, and you can correct me, does not mandate every worker in the country to receive such a vaccine.

We have flu vaccines.

The flu kills, I believe, hundreds, thousands of people every year.

OSHA has never purported to regulate on that basis. What do we make of that when we're thinking about what qualifies as a major question and what doesn't?

Elizabeth B. Prelogar: Well, with respect to other diseases where there are effective vaccinations, I think that the simple explanation for why OSHA hasn't had to regulate workplace exposure to that is because virtually all workers are already vaccinated. With respect to many of those diseases, all of us have at one time or another been subject to compulsory vaccination requirements --

Neil Gorsuch: Is that true with the flu?

Elizabeth B. Prelogar: -- mostly --

Neil Gorsuch: Do we -- do we know that to be true with the flu?

Elizabeth B. Prelogar: The flu is an exception because it's a seasonal illness, and, there, I think that the explanation for the failure to regulate is that it doesn't present anything approximating the kind of hazard or danger to workers as COVID-19.

I -- I don't want to suggest that it would be --

Neil Gorsuch: Are you suggesting that it doesn't pose a grave risk?

Elizabeth B. Prelogar: I think that the agency would have to build the record to demonstrate that it would clear that statutory hurdle for --

Neil Gorsuch: But it might?

Elizabeth B. Prelogar: It would depend on the evidence.

Certainly, if there were another 1918 influenza outbreak like the country experienced before, yes, absolutely, I think OSHA could regulate exposure to influenza in the workplace.

That's similar to what's happening -- happening with COVID-19 right now.

John G. Roberts, Jr.: Justice Kavanaugh?

Brett M. Kavanaugh: I want to follow up on Justice Gorsuch's and Justice Kagan's questions with how the major questions doctrine applies and really first zero in on this question of ambiguity. We've used words like vague, subtle, oblique, cryptic, and ambiguous to describe the kind of language that would trigger the major questions doctrine if it is a major question. We haven't only used the word ambiguous.

And it seems to me that a question that I'd like your help on is applying language that is subtle, cryptic, oblique to a new context hasn't been done before in the last 50 years.

How do we think about a question like that? And in answering that, think about the benzene case, the Brown & Williamson case with tobacco, benzene with cancer, and the UARG case with greenhouse gas emissions.

All three were the agency was applying this broad but arguably cryptic language to a new context.

I think that's one way to characterize them. How do we think about that?

Elizabeth B. Prelogar: Well, I think, Justice Kavanaugh, looking at those three cases in particular, that the reason the Court concluded that the language was -- was cryptic or oblique was because it identified other textual or structural reasons that ran counter to the agency's interpretation. So, in the utility air case that you referenced, the Court observed that the asserted regulation would overthrow the entire statutory scheme.

The agency had conceded that it was never what Congress could have possibly intended.

So that was a structural indication that the agency's regulation was impermissible. With respect to the benzene case, there too, there was a question about whether there was an entitlement to regulate without any finding of risk, and that was in tension with other statutory provisions, so there was a conflict. And with the Brown & Williamson case that you mentioned, the Court chronicled a long line of statutes that had directly addressed the issue of regulation of tobacco products and would have been flatly inconsistent with the agency's asserted jurisdiction. So there's never been a case where the Court has just confronted broad language and said, oh, it seems cryptic or oblique and so it's a major question and we're not going to give it its plain meaning.

In all of those cases, there was a -- a -- a textual and structural reason for the Court to conclude that there was something wrong with the agency's claimed authority.

Brett M. Kavanaugh: In all three cases, there were strong dissents that said the opposite of that, though, that said actually the statutory language is clear and that the Court -- you know, Justice Marshall's dissent in the benzene case is very powerful that the Court was simply scaling back from the plain language because of its concern about the significance of regulating every workplace in America to take out any risk of cancer. So there were dissents that made that point, but the majority seemed nonetheless to apply the major questions doctrine.

Elizabeth B. Prelogar: There were certainly dissents in those cases that thought that the statutory terms could get the agency there.

But, here, I think the critical difference is that the Applicants haven't pointed to anything in this statute that approximates the kind of textual or structural problem that has prompted the Court to look at those kinds of consequences before. And it would be their interpretation that creates those problems.

They would render superfluous Section 669(a)(5)'s specific recognition that immunization requirements can be imposed under the OSH Act itself.

By saying that OSHA can't regulate COVID-19 in the workplace, they'd give no effect to Congress's appropriation just last year directing OSHA to do just that and to target that grave danger. And so, in this case, we think that all of the textual clues line up on our side, in addition to the plain language of the statute.

Brett M. Kavanaugh: And one other question related to this -- sorry to prolong this -- but Congress has specifically referred to vaccines in a variety of contexts. Immigration contexts, those statutes authorize specifically via language vaccines.

Military contexts, which you would expect, at least the Anthrax vaccine is referenced in the military statutes.

The National Childhood Vaccine Act passed in '86 refers, and it's a different context, but dealing with vaccines.

And so that's one point. And the other is since -- not forever, but 2005, President Bush gave a very detailed speech kind of predicting what has happened, and it's eerie to read it, and yet, in the -- in the years since, there has not been at least a vaccine statute passed by Congress to deal with this kind of thing, even though he, in -- in the wake of 9/11, but still was putting the country on notice of this problem that was going to hit us at some point.

Elizabeth B. Prelogar: Well, I certainly recognize that there are other statutes where Congress has specifically referred to vaccination, and I think that maybe that would get the Applicants some traction here if, for example, this Act specifically referred to other mitigation measures and -- and illuminated what kinds of things OSHA could do and left vaccination off the list.

But it doesn't do that. And so I think to suggest that there is some negative inference to be drawn is inconsistent with how Congress drafted this statute in recognition that OSHA would be positioned to understand the kinds of control measures that are necessary against the variety of workplace hazards. And if I could make just make one additional point on that.

Of course, as I've emphasized, there is an express reference to immunization requirements in the OSH Act itself, so we think that that actually provides additional confirmation that Congress was thinking about that and could have anticipated it and that religious exemption would have no application if, in fact, immunization is just off limits. But I think as well it's important to look at this against the backdrop of immunization requirements in our country.

This is not some kind of newfangled thing.

As I've mentioned before, most of us have been subject to compulsory vaccination requirements at various points throughout our lifetime. And so the idea that Congress couldn't have anticipated that in dealing with the -- the deadliest virus that OSHA has experienced in its history, it might think that vaccination -- encouragement of vaccination would be an appropriate way to protect workers, I think, is just inconsistent with the idea that vaccination is often the single-most effective way to target a virus.

Brett M. Kavanaugh: Thank you.

John G. Roberts, Jr.: Justice Barrett?

Amy Coney Barrett: General Prelogar, I have two questions, both of which address the status of this rule as an emergency temporary standard.

So my first question has to do with the question with which Justice Thomas opened, which is the meaning of "necessary." So, of course, when OSHA passes a rule through its regular regulatory process, it has to go through notice and comment, and that's a way of holding an agency accountable.

All affected people have an opportunity to comment, and the agency develops a robust record. With an ETS, of course, the agency can circumvent that process so that it can act more quickly.

So, for an ETS, we would want that power to be the exception, not the rule.

And one contrast that the Applicants point out between OSHA's authority to issue an ETS versus a regular regulation is that for its exercise of power in the normal course, it need only find that a regulation be reasonably necessary, but, for an ETS, it has to satisfy a necessary standard. Now you've argued, and I think there's a lot of intuitive appeal to this, that when you're facing an emergency of the magnitude of this pandemic, that this power effectively -- can be used most effectively as a blunt instrument.

You know, we don't have time to make industry by industry specific kind of calculations because we want to move with speed. But how do you reconcile that understanding of "necessary" with the broader "reasonably necessary" standard in OSHA's normal regulatory authority?

Elizabeth B. Prelogar: So we certainly agree that the Emergency Temporary Standard's reference to "necessary" as contrasted with "reasonably necessary and appropriate" is a -- is a heightened burden and includes a measure of tailoring that's necessary with respect to the particular mitigation measures. But I don't think that that helps the Applicants here because they haven't come forward with any alternative mitigation measures that they think would equally protect the workers that OSHA found were in grave --

Amy Coney Barrett: But do they have --

Elizabeth B. Prelogar: -- danger.

Amy Coney Barrett: -- to come forward with that evidence, or did OSHA have to consider it and reject it? Because another part of their contention is that OSHA did not adequately explain why this measure, this particular rule and its scope was necessary vis-à-vis or as compared to other possibilities.

Elizabeth B. Prelogar: Well, OSHA explained that at length over dozens of pages in the 150-page preamble to the rule.

OSHA specifically explained why vaccination as the single most effective way to target all of the ways that the virus threatens workers in the workplace was a necessary measure here. And it further explained why masking and testing would be essential if workers remain unvaccinated, in order to ensure that, despite their higher risk level of contracting the virus, they couldn't carry it into the workplace and spread it to their coworkers. So I think the suggestion that this wasn't adequately explained is inconsistent with the -- the arguments they're making. And as I understand their tailoring arguments -- and this actually touches on the question you asked earlier in the argument -- they're really focused on two things, the categories of workers and the -- the particular workplaces.

And they haven't suggested that there are other mitigation measures there that OSHA neglected to consider.

They're saying those things should have just been carved out altogether. But that is inconsistent with the Secretary's judgment that all unvaccinated workers face a grave danger and that the risk exists anywhere that employees are gathered indoors together. And, again, there might be subcategories within those groups that are in graver danger, but I don't think there is any basis on this record to conclude that the agency lacked substantial evidence to draw the lines that it did.

Amy Coney Barrett: That's helpful. Thank you. My -- my second question is, again, about the status of this rule as an ETS.

So Chief Judge Sutton pointed out in his dissent from the denial of initial en banc that OSHA did not adopt this rule in response to the emergency qua emergency because that had been ongoing since early 2020, but, instead, it responded to new facts on the ground, which included the widespread availability of a vaccine, that maybe it was a surprise many people chose to forgo, and the emergence of the Delta variant. And Chief Judge Sutton pointed out that in an extended pandemic, or I don't know if we've moved to an endemic, such as this one, facts will continually change.

New variants will emerge.

There might be new treatments, new vaccinations.

We have boosters now, right? So now full vaccination might not just be the two jabs; it might include a booster as well. So when does the emergency end? I mean, a lot of this argument has been about Congress's failure to act.

Two years from now, do we have any reason to think that COVID will be gone or that new variants might not be emerging? And when -- when must OSHA actually resort to its regular authority and go through notice and comment and not simply be kind of doing it in this quick way, which doesn't afford people the voice in the process that they are otherwise entitled to?

Elizabeth B. Prelogar: So I think, if I could respond to that in a few different ways, Congress defined when the emergency exists.

It labeled this an Emergency Temporary Standard, but it's dictated by the statutory requirements.

So there has to be a grave danger from a physically harmful agent or a new hazard, and the measures have to be necessary to protect against that danger.

And we don't think that there is an additional free-floating requirement about emergency status that has to be taken into account.

Amy Coney Barrett: So it could be an emergency two more years from now?

Elizabeth B. Prelogar: Well, I certainly take the point that the emergency can be of substantial duration.

Of course, this is not a way to -- to bypass notice and comment permanently.

Congress further specified that the agency is expected to conduct a rulemaking process over six months, and that's why the agency estimated the lives saved, the hospitalizations prevented over the six-month life of the rule.

Amy Coney Barrett: Sure, but I was envisioning a new rule, right? Like, you know, OSHA might, two years from now, adopt something that's different from this vaccine or mask-and-test mandate.

I'm just talking about the limits more generally on OSHA's power under the ETS provision.

Elizabeth B. Prelogar: The limits, I think, are the ones written into the statute. And so, if you want to project out two years from now, I think it's entirely possible, of course, that the trajectory of the pandemic will change.

I certainly hope so.

And in that case, OSHA, I think, would have to, if it wanted to regulate again, cross the high burden of showing a grave danger. You know, this is a -- an authority it has used sparingly in cases of -- of what we think are true emergencies, and I think to suggest based on concern about what might happen in the future that its authority should be constrained or clipped now, when we are in the middle of an unprecedented pandemic that is claiming more lives than we've seen in a shorter amount of time, would do a disservice to Congress's anticipation that OSHA might need to act quickly in response to dangers like this.

Amy Coney Barrett: Thank you.

John G. Roberts, Jr.: Mr. Keller, rebuttal?

Scott A. Keller: Two points, Mr. Chief Justice. First, we need a stay now before enforcement starts.

Our members have to submit publicly their plans to how to comply with this regulatory behemoth on Monday.

Vaccines would need to occur by February 9.

You would need two vaccines to comply.

Those vaccines would have to start immediately.

Tracking and recordkeeping cannot happen overnight. And on tests, you heard my friend, the Solicitor General, mention the media reports that we've all seen about shortages of tests and costs increasing.

Our declarations, Appendix page 345 and 374, confirm that as well. And that's exactly why workers will quit right away.

You don't even have to take our word for it.

The federal government, the Postal Service and Amtrak both say the same things.

What OSHA did is they cherry-picked one study about healthcare workers, a very specific industry, and what that worker attrition rate would be.

Again, two declaration cites, we have plenty more, but Appendix pages 351 and 374. And my second point to close on is about who decides in the public interest, and I would submit that this Court's precedents answer that. We're not asking this Court to reverse anything.

Industrial Union 40 years ago in Justice Stevens's controlling opinion said that there was an absence of a clear mandate in the OSH Act, so it's unreasonable to assume that Congress gave OSHA unprecedented power over American industry and the emergency power is also narrowly circumscribed, yet, here, OSHA has never before done mandated vaccines or widespread testing, much less over all industries or on an emergency basis. So whether we're talking about the agency's failure to explain, whether we're talking about the statutory term "necessary," whether we're talking about how this has to be tethered to the workplace under the major questions doctrine, under any one of those theories, we are likely to succeed on the merits. And, finally, when it comes to the public interest, as this Court just recognized a few months ago, it is undisputable that the public has a strong interest in combatting the spread of the COVID-19 delta variant, but our system does not permit agencies to act unlawfully, even in pursuit of desirable ends. We would respectfully request a stay of this unprecedented sweeping S -- ETS before Monday.

John G. Roberts, Jr.: Thank you, counsel.

The applications are submitted.