OA554: 6th Circuit Overrules Atrocious 5th Circuit Ruling on Vax Mandates

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 554, Jingle Bells edition. How you doing?

0:01:25 Andrew: I have decked halls. I'm jolly and merry. How are you doing, Thomas?

0:01:31 Thomas: Oh man, I am just, it's all coming together for the Smith household. We had a hellish time with this construction going on in the house. It was rough and we knew it was going to be a tight squeeze because they just finished and then we're like, okay, Christmas tree and all the Christmas stuff and get all that. But it worked out. We found a really good tree, super late just last night uh I love having a tree, everything, the kids just make everything, you know, I just love doing all the holiday stuff for the kids, it's my favorite, I have so much fun yeah

0:01:42 Andrew: Yeah. Oh, that's awesome. Yeah, yeah. Your age are, I mean, like that's the reason for the season as far as I'm concerned, you know? I mean my son is 19. He's getting ready to go off to of college and you know I've been able to get him some fun stuff but uh I mean it's nothing like you know like oh when he was eight and I got him the like giant transforming death star you know the this the Star Wars Transformers crossover and like we sat down and played with it you

0:02:11 Thomas: Yeah yeah that's the best that was really for you yeah totally it had P Andrew Torrez on it like embroidered and it's like the old homer giving march the bowling ball

0:02:31 Andrew: Yeah right the march the bowling ball absolutely yeah I tried really really hard to get uh to get Alex into Transformers. And, you know, with, would say middling success, but that overestimates middling.

0:02:34 Thomas: Yeah yeah that's gonna be me and hockey we'll see, how it goes hope everyone's having uh great holidays, uh I say it every time, we're still coming at you with um new content, I, every time I download one of my podcasts I listen to and it's like best of, I'm like, all right, well, I've, I've know all that already I listened to it, yeah so we're not doing that, no No best ofs here, except, you know, every episode is the best of that episode with Andrew. Speaking of Andrew, you are, you're really a podcast, well, it's a children's show, but you're getting around podcast wise.

0:02:45 Andrew: Yep. Ah.

0:02:59 Andrew: I listen to you. Yeah. Aw.

0:03:16 Andrew: Yeah, I just did episode 630 with our friends, well, with Dan over at Knowledge Fight, because Jordan is on vacation. Alex Jones, like John Eastman, like Mark Meadows, right, has sued the House 1-6 Committee. And really, you know, it's the same game plan of, trying to block the phone companies from turning over records to the 1-6 Committee. Committee, uh, interestingly enough, Alex Jones decided not to name AT&T as a defendant to his lawsuit, which you know is a fun strategic choice when you want relief against AT&T, but you know, if you want an hour and 40 minutes of me breaking down a complaint filed by a lunatic, uh, who has engaged a a law firm that is completely unqualified to handle this lawsuit, suit, check uh out that Knowledge Fight episode.

0:04:10 Thomas: Yeah, or anytime we cover any lawsuit on here, because they just don't seem to be able to law very, too good, Andrew. They're not, they don't law very well.

0:04:11 Andrew: Yeah yeah it's a little bit of foreshadowing

0:04:20 Thomas: Yeah, we'll get to it in the show. I. I also want to just give a quick notice to all patrons and potential patrons that Law'd Awful Movies is out. I believe it was 55 and it was Physical Evidence, a Burt Reynolds movie from 1989 that was shot as though it was a period piece where you wanted to get as much 80s as you could. Oh, it was so much fun.

0:04:44 Andrew: It was a Law'd Awful Movies, I Can't Drive 55, uh, it, it, it it has Ted McGinley in it, uh so, So, you know, Mr. 80s, it's, we

0:04:51 Thomas: Oh, it was the best. Lots of terrible law, lots of 80s-ness.

0:04:56 Andrew: Had a lot of fun, as we always do.

0:04:59 Thomas: Hey, maybe you need next, because one of your other lazy podcasts is off or something, you know, maybe you needs another extra thing to listen to, go to Law'd Awful, go to patreon.com/law, and at the $2 level, you get that Law'd Awful Movies. Worked very hard to get that edited and out. The patrons had two drops on Sunday. It was, it was a lot, but made it happen. And it was so much fun. Go check it out.

0:05:20 Clip: Andrew Torrez is wrong, wrong, wrong.

0:05:22 Thomas: So, Andrew, I was wondering what you're going to say about this, because last week, of course, we covered the pivot to voting rights. Rights. And I allowed a little bit of optimism to sneak into my cold negatron heart a little bit.

0:05:32 Andrew: Optimist Prime was here. That's right. Yeah. Yep. Yep.

0:05:43 Thomas: And then, you know, that day or the next day, all hell broke loose on the Build Back Better mansion going on Fox News to announce that he's not supporting Build Back Better. And but, you Know, as much as that was like a, F mansion kind of day, I didn't know if that specifically meant anything about our previous slight Manchin optimism on voting rights, but it did make me think, and I'll run this by you as a question, does it make it look like the pivot to voting rights is less about that having a chance of happening and more about Build Back Better just not happening?

0:05:50 Andrew: Yeah. Kind of love that.

0:06:15 Andrew: I agree with that. I think that, you Know, the sort of Bayesian inferences of, you that revises your priors, you revise your predictions. And a week ago, background assumption that I had was that Joe Manchin, while trying to carve out a quixotic path to his own reelection in 2024, when likely Donald Trump or somebody who is the mantle of Donald Trump will be running against either Joe Biden or Kamala Harris in a state that last voted for Donald Trump by a 37-point margin,

0:06:54 Thomas: I got a prediction for you. I think it'll be neither Joe Biden nor Kamala Harris, but that's just me.

0:06:57 Andrew: Ooh, that's a very, very strong prediction. So I'm happy to, I would not bet against Donald Trump at this point, but I would happily, I will happily take the other side of that. I think, Like would say vanishingly small that it will be someone other than Biden or Harris.

0:07:02 Thomas: And I think het will be Donald J. Trump.

0:07:16 Thomas: I thk odds are better that it's Biden than Harris. OK, prediction over. But yes.

0:07:17 Andrew: Anyway, Anyway, my prior a week ago was that whatever the strategy is, and, look, like aren't a lot of good strategies you could come up with for winning. That is, like, how, to how do I get, you know, my QAnon supporting Uncle Frank to become a patron of Opening Arguments events, right? Like, that's the level of strategy that you need to try and employ here. But my thought was, in watching Manchin over the past decade, that he would not want to publicly embarrass the Democratic Party, the incumbent Democratic president. And that's based on his votes and public behavior over the last decade, know, right, you need some cover. He got that during the Trump administration, to kind of cast symbolic votes. But Manchin was always there to sort of get in line when absolutely needed.

0:08:09 Andrew: And as you point out, you don't accidentally wake up and decide I'm going to break major news on Fox News, right? That's a deliberate middle finger. And there were dueling press statements back and forth. And with respect to all of that, looks like there were some personal hurt feelings and everything else.

0:08:15 Thomas: Yeah. Yeah, I was going to say that. I think that, you know, I tweeted about this because I heard some of his interviews and I really think we've made the point on the show, but all the backseat driving on. Well, Biden could do this. He could have been pressuring him. Why isn't he? And it's like, OK, one, we have no we have no leverage over Manchin.

0:08:30 Andrew: Yep.

0:08:47 Andrew: Here, here, let's roll play this real quickly. I'll You know, Senator Manchin if you don't vote for Build Back Better, I'm going to recommend that they take away your committee assignments. Assignments.

0:08:49 Thomas: No. Oh, OK. Sure. OK, I'm a Republican now. Bye. Hey, how about those federal judges you you want you want past Joe? Joe, you want me to vote yes on any of those? Or should I, what do we think?

0:09:07 Andrew: Okay, I'll vote for Mitch McConnell for majority leader. You don't even have to re-regulate. He could become an independent. He doesn't even have to become a Republican. He can just say, all right, cool. Your threat has been duly noted. Here is my response, um, yeah,

0:09:14 Thomas: Yeah, that's true. Yeah, yeah. No leverage, no leverage over this guy, zero. And not only that, it looks like even not utilizing that leverage that we didn't have, you know, like they were still harassing him enough to where he referenced that as the reason, which is Joe Manchin was like, well, this staff is bothering me too much. You know, like that's one of the reasons he quit. And so, yeah, we're dealing with a petulant child slash possibly a corrupt guy, maybe slash somebody who we have no leverage over, zero leverage over. And. And by the way, here's the other thing. This is Joe Biden's signature legislation. I get that there seems to be a mind virus among the far left that actually Democrats don't want to do anything.

And it's a secret double, you know, Zantos gambit, whatever, to not get anything done. Maybe, maybe that could apply in terms of Joe Biden watering down some things like he's not doing certain things. Sure. Yeah. He's moderate. He's, he's centrist. He's moderate. He's not doing enough on a student loans or certain things, but do really think, does it make any sense for him to pin his entire like presidency on this signature signature legislation and then not do everything he thinks he can to pass it.

0:10:27 Thomas: I mean, that just doesn't make any sense on any theory of mind of Joe Biden. So clearly he was doing what he could. Now, maybe he's not good enough at doing that. That could be a possibility. I don't know. But it seems real difficult for us here with no information on how the negotiations were going, or very little information, to say like, nah, Joe Biden's just not trying. He's just is not trying. What? How could you think that?

0:10:51 Andrew: I will take this bit of backseat driving as right follows which is to say they should have done take it or leave it with Joe Mansion back in in August, not watered down the bill. And then in August he says, okay, well, I'm not voting for it. And then you have, you the situation that you have now, but at least you haven't cut all of the progressive stuff out of the bill."

0:11:13 Thomas: Are you talking about when they split off the infrastructure bill or?

0:11:14 Andrew: Yes, exactly right. Right. And they went down kind of the second track.

0:11:19 Thomas: Love how much the Biden administration cannot win. This is the media environment we live in. No matter what happens, Democrats are losers and didn't do the right thing. Because all the talk around that time was how Biden can't get a win. They can't get anything passed. Nothing's happening. Nothing's happening. They're terrible. They're terrible. And so they're like, all right, let's get infrastructure done. Let's pass a, you massive revitalizing infrastructure deal, uh, for which, yeah, they did sacrifice leverage on that for sure, but to get something passed to try to counter this awful narrative. And now it's just like, well, that was a loser thing to do because the Democrats are losers and everything. It's like there's no winning.

0:11:22 Andrew: That, I don't disagree. I'm trying to, you of steel bot the other side as best as I can. And I would say, you if I were then responding to that argument, it would be, yeah, because I care about more than just making a political statement, right? I care About, actually you extending the child tax care credit, right, actually providing universal free pre K for everybody. The key key provisions that we've gone over that are in Build Back Better that are very progressive and that would be transformative in society. And the argument of, hey, if I can spend a couple of months lobbying Joe Manchin and get a chance to get something done, willing to take that Now,

0:12:40 Thomas: I think there's every chance we would have had neither bill, um, right. I mean, there's at least every chance of that, and and this is where we should enter one more thing into the record, which is, it sounds like Joe Manchin was just lying. Honestly, that was the gist of the Joe Biden statement. So if you want to fault Biden for that, for taking him his word, and by the way, the progressives in the House and the Senate were correct. They were right ultimately. I'm not saying they were wrong, but I also understand why Biden was trying to do. And by the way, why Schumer is trying to do what he's doing. And I don't think that evil explains it. You know, I think it makes more sense that they were desperately trying to get something done because of sliding numbers and, you know, criticisms that nothing was getting done and Democrats weren't doing enough.

And they probably had Joe Manchin lying to them and stringing them along that they would be able to get something done on this other deal. Now, ultimately, progressives were right. The Manchin was a liar. But, you know, like that's the criticism. Like Joe Biden took, maybe took him at his word in an effort to get more done.

0:12:42 Andrew: Yeah. Yeah, I cannot.

0:13:42 Andrew: I invite you, write you in openarguments at gmail.com. I can't come up with a gameplay that actually gets something done that, you know, that puts us in a better spot. The only thing I can come up with is what we've been saying, you know since the beginning of 2021, which is, you if you elect more democratic senators, then you can lose a mansion and you can loose a cinema and it doesn't matter.

0:14:07 Thomas: Yeah, that's The only path. Path, I know it makes people unhappy or something, but like literally that's it. I don't, it's it's the weirdest thing. There's no, people want to like talk as though, well, I can send a message to the Democrats by not voting for, okay, cool, so just Trump and a Republican Congress. Yeah, that's great, that'll, that'll be great. So next time, you mean, so like in four years, if we still have any democracy or voting rights, you think that then we'll overcome it because of the message we sent by letting Republicans back into power. Awesome. Yeah, that'll work.

0:14:12 Andrew: Yep.

0:14:37 Andrew: We have talked about the message argument at length on this show, I would just say if you you read the poli-sci literature, there is not published academic peer review literature from reputable sources on the message effect of your voting, right? Like, that is not, if you talk to people who do this for a living and say, well, yeah, but what about the message I sent? Like literally you will get laughed at, because that is Not a thing that your vote is meant to do, particularly not, and again, want I to bracket everybody who's like, well the problem is, you know, first-past-the-post voting and a two-party system, and yes, yes, that is the problem. Yes, we've made some headway in, you getting ranked-choice voting, and we're 100% behind it. But you have to play by the rules that we have. And the rules that we are, by and large, are first-pass-the post in a two party system. And, there just is nothing in the academic literature from people that that conceitedly are smarter than me, that spend their lives studying this stuff that says, you vote is not intended to send a message.

It is not meant to be part of a communicative activity. It's a tool. It isn't meant imperfect tool that the Republicans are chipping away at at every step of the process. Failure to use the tool that you have, well, anyway, you we've been over that. So here's my smooth transition to the kind

0:15:13 Thomas: Yeah. Of course. Yeah duh.

0:16:02 Thomas: Okay.

0:16:02 Andrew: Of deep dive. It seems to me then, we saw from the Tuesday address to the nation that President Biden delivered, that for the immediate future, Biden will be asking the American public to judge the administration based on their response to COVID. COVID. We have the Omicron variant, which is huge black box for us right now. The information we seem to have is that it is considerably more transmissible, considerably less lethal. Where on those variables it interacts, we just don't have enough data to know, right? So I thought we would take a look at the future of COVID restrictions, and in particular, decision that came out two days ago from the Sixth Circuit, lifting the Fifth Circuit's injunction on the OSHA administration rule on COVID-19 vaccinations.

0:16:49 Andrew: This is the one that applies to private employers, right? Not just government sector employees. Are fighting back against the Republican judicial infrastructure that's been put into place. This is a really, really good decision. And if we're able to get something like masking mandates at employers with over 100 employees, will make a material difference in

0:17:14 Thomas: Well, uh, sorry to spoil your transition, but I do think there are some questions that people likely would have for you on this stuff. So, I've seen a lot of Democrats in Congress tweeting cause that seems to be how we get messages out these days, but talking about about how Build Back Better is not dead. So what are the chances of all that? I know there's the two, I believe, budget wreck things we can do per year. And it sounds like we're in danger of losing one of them, like we're not going to do anything for one of them. And then what do you think Democrats are talking about when they're saying it's not dead? Do they mean this year? Do they mean like next year? What do you think? Hmm.

0:17:16 Andrew: Okay.

0:17:30 Andrew: I think They have to mean next year, uh, which Yes, means that we have lost, uh, an opportunity to pass something, uh, via the the reconciliation process, and you know, if I, if you'll forgive me for, uh, plugging today's Cleanup on All 45, which I was really proud of, we, um, basically did a a deep deep dive on what the filibuster is. We've done that on this show.

0:17:56 Thomas: Wow. No.

0:18:10 Thomas: Of course, yeah. Yeah.

0:18:17 Andrew: But, you know, we sort of go through, I thought it was a nice timely option for particularly folks over there who, you know, may not have listened to every episode of the Backo A catalog. At the end of of day, be it a vote in reconciliation or a vote to waive an aspect of the filibuster or a vote to wave all of the flibuster, right, and just blow it up in its entirely, it's all the same thing, right? Like, there's no, you know, appeals process.

There's nothing on the right. It just comes down to a question of, is Joe Manchin, is Kyrsten Sinema, are they willing to cast that vote, right. There is zero repercussions to them for casting it or, you know, zero repercutions in terms of, you know, what actually happens in the scope of the Senate. May There be electoral consequences one way or the other. But it's not like, you it commits you to do X, Y or Z. It's not like it even prevents the Senate from reestablishing, you know, what is effectively filibuster rules down, down the line, so right? In other words, um, if Democrats wanted to, and I think we know why they don't, but if Democrats wanted to quote unquote, change the rules to make it such that, uh, judiciary appointments required 60 votes again, they could do that, You right. Would just appeal to the decision chair.

0:19:41 Thomas: Of course.

0:19:41 Andrew: Sorry, you would appeal from the decision of the chair. God, that's a terrible verbal tick. I don't think I made it once on cleanup, but here we are. We're right out of the gate when I'm extemping.

0:19:41 Thomas: No. That's a silly pedantic thing that no one but you and some other pedant knows why it would be from the decision of the chair.

0:19:56 Andrew: Well, because the chair is the presiding officer who would then issue the ruling, appeal and from their ruling to the Senate as a whole, and that's just a straight up 50-50 vote. Now, you would be very dumb strategically for Democrats to vote back in the 60-vote requirement because they would just not get any judges, lose your ability to confirm judges until the Republicans took back over, at which point they would change the rule back down to 50 again. My point is that when you're talking about about kind of long-term, precedential effect, right? There's no legal precedential affect. There is only like what senators are willing to vote for, being the 50th vote on reconciliation or a partial lift of the the filibuster to pass the Voting Rights Act or a complete lift of the filribuster is all really the same thing, right? It's just, is Joe Manchin willing to cast that vote as I?

0:19:57 Thomas: Uh-huh.

0:20:53 Thomas: I, so the question of whether or not Build Back Better, we started off on that. So you don't think this year's any, any sort of watered down anything? Nothing that we can, okay. So if, if it's indeed at all alive, it will be next year, nothing.

0:21:07 Andrew: I don't I don't see that Yep. And

0:21:14 Thomas: Okay. Well, that's sad.

0:21:14 Andrew: We will have blown one of our tools. Yeah. So

0:21:17 Thomas: Yeah, that sucks. That sucks. That's a bad Congress thingy. Boy, I wish we had least two more Democrats in the Senate. That would really be the easiest way, the most plausible way for us to get done what we need to get down. We fell a little short of what we needed to get everything we wanted. All right. So pretend Andrew did an amazing transition over to the future of COVID restrictions and the Sixth Circuit ruling.

0:21:18 Andrew: Yeah.

0:21:42 Andrew: Having done that amazing transition, let's, uh, let's talk about This is this is a good opinion. I thought, uh, some legal geekery, uh, kind of right out of the gate, which is, is, hey, how can the Sixth Circuit overturn, dissolve, right, a stay that was enforced by the Fifth Circuit. Doesn't that seem like the kind of thing that you would have to go up to the Supreme Court over?

0:22:03 Thomas: Hmm.

0:22:03 Andrew: And answer to that is, no. The answer is, we have a statute, right. And remember that the judiciary is the Supreme Courts and, you know, such lower courts as Congress may may from time to time ordain and establish, right? So Congress gets to set the rules for federal courts. And 28 U.S.C. 2112, basically a lottery system, it right, says if an agency receives two or more petitions for review of an order, they can notify the judicial panel on multi-district litigation in such form as they may provide. And that panel shall then, by means of random selection, designate one court of appeals from among the courts of appeals in which petitions for review have been filed and received to rule on all of so them.

0:22:50 Andrew: You basically can consolidate all of the questions that people have run to court trying to get declaratory relief and injunctive relief saying you can't enforce the OSHA mandate requiring employers with over 100 employees to either make sure that their employees are vaccinated or hold weekly testing or have them work from home. That's right? Essentially what the OSHA rule is. And this 28 U.S.C. 2112 says, yeah, if you have multiple cases, you go, you pick a court out of the hat, and they become, they get the hat.

0:23:27 Thomas: I hope it's, is it an Uncle Sam hat? Like there's got to be some theme to it.

0:23:28 Andrew: Yeah, oh gosh, it should be a Christmas hat, right? And then hat court stay any particular order that any court has previously entered. And that's exactly what happened. So this Sixth Circuit opinion determined that the continued spread of COVID-19 met the statutory requirements. The statute is 28 U.S.C. 655, requires OSHA, right? It's not just discretionary. It says they must issue an emergency standard if it is necessary to protect workers, right, in the workforce from a, quote, grave danger presented by, quote exposure to substances or agents determined to be toxic or physically harmful or from new hazards, end of quote.

0:23:34 Thomas: You

0:24:25 Andrew: Now, Thomas, if you were a good, you know, I'm going by the plain meaning of the law, like that seems to cover COVID, doesn't it? Yeah, it's grave danger for exposure to agents that are toxic or, I would say, and from new hazards in the workplace, right?

0:24:34 Thomas: Would think. Yeah.

0:24:45 Andrew: Yeah. So the Fifth Circuit felt differently. And let me tell you, this is really, really important to understand why the Fifth Circuit felt differently, because it illustrates the significance of the right wing's ongoing war on Chevron deference, right? Chevron Deference, that is, courts are supposed to defer to agencies' determination over the scope of their own rules. What is called Step Zero of Chevron Deference is to figure out whether the agency was properly delegated that authority in the the first place. And that is why you have seen a barrage of right-wing courts issuing opinions that say, well, we're not clear that Congress ever intended for X agency to do Y thing.

0:24:44 Thomas: Yep. Yep, God. Yeah,

0:25:31 Andrew: And, they know they can say that because our Congress is broken and our Congress doesn't intend to do anything for the foreseeable future

0:25:31 Thomas: Well, and they can say it because Gorsuch is on the Supreme Court, right?

0:25:37 Andrew: Yeah, Yes, yes, and so, uh, if Chevron step zero says that the agency doesn't have the power to do this, then no deference is owed to their determination. Now, and again, that makes total sense from a legal perspective, right? Like, you would not want to defer to an agency's interpretation of the scope of its own rules if, you, OSHA started opining about, like, I don't ballistic missile placements in Eastern Europe, yeah, well,

0:25:57 Thomas: Mm-hmm. Yeah but it's just that right-wing judicial activists, judges, Are just interpreting that in the worst possible way and saying, "No, no. No agency has like any authority for anything."

0:26:17 Andrew: And that's a great lead-in to what the Fifth Circuit actually said in a case called BST Holdings. They said, notwithstanding the words that I just read you, quote, Texas makes a compelling argument that that statute, 655c1s, neighboring phrases, substances or agents, and toxically or physically harmful, place an airborne virus beyond the purview of OSHA in the first place. To avoid giving unintended breadth to the acts of Congress, courts rely on the principle of noscitor asocis. That's a Latin phrase. A word is known by the company it keeps. Here, OSHA's attempt to shoehorn an airborne virus that is both widely present in society, and thus not particular to any workplace, and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is yet another transparent stretch.

0:26:19 Thomas: Yeah. Oh, My god, this Is unbelievable. First it's cruel and unusual. It's like that kind of stupid logic. And then the idea that it's, oh yeah, it's safe for the vast majority, like, this has killed more people than what anything ever, and like all the wars and everything. Like, this that is insulting. And it is particular to workplaces in everyday life. I am not going to to be forced to be packed in tight with people in a shipping center or in a, meat processing center. Yes, absolutely, the F is to different workplaces, and how workplaces handle that would be something that absolutely is under the the purview of this federal agency.

0:27:54 Andrew: Yep. So the Sixth Circuit had two responses to this argument, both of which are pretty knocked out. Because again, remember, this is the uber conservative Fifth Circuit saying, well, look, you could read the law, but what you should really be looking at is the context of this word with this other word, right? All the arguments that they make fun of anybody who does not have a straight dictionary interpretation when it comes to avoiding absurdities. So the Sixth Circuit writes, agent is a chemically, physically, or biologically active principle. That's from Merriam-Webster Collegiate Dictionary. And then there's a website citation, right. And a virus is defined in part as any large group of submicroscopic infectious agents. Virus, Merriam-Webster Collegiate Dictionary citation. The statute thus requires OSHA to determine whether an agent is toxic or physically harmful or from new hazards. Speaking in the disjunctive, which specifies that the words so connected are to be given separate meanings. To conflate two descriptors into one meaning would improperly render one disjunctive phrase superfluous.

0:28:17 Thomas: Yeah,

0:29:05 Andrew: Under the statutory definition, any agent, including a virus that is either toxic, i.e. poisonous toxicity, or physically harmful, I。e. Causing bodily harm, falls within OSHA's purview. An agent that causes bodily harm—a virus—falls squarely within the scope of that definition. And you can just see, like, the judge and the judge's clerk being like, I cannot believe I had to write this paragraph, right? Like, duh, a virus is a toxic or physically harmful chemical agent. Addition to the plain meaning of the statute, the Sixth Circuit also points out that OSHA has had vast authority expressly delegated to it to regulate infectious diseases for decades. Decades. I'm not even going to go down based on time, to a paragraph-long invocation of something called the major questions doctrine, which is something I'm sure we're going to see conservative courts use, but it is a seldom used argument that says for major questions of vast economic and political significance, you require a more explicit delegation of authority from Congress, right?

0:29:24 Thomas: Yeah.

0:30:18 Andrew: Like you have a heightened standard on that. So the Fifth Circuit also said, oh yeah, by the way, we're not sure. This is surely a major question and we don't know if we have that level of evidence. Sixth Circuit was like, Congress has explicitly told OSHA to regulate infectious diseases like all the time, man. In 1989, OSHA proposed a standard governing blood-borne pathogens to curb transmission rates of HIV, hepatitis B, and hepatitis C. When that standard had not been finalized by 1991, Congress ordered OSHA to finalize its rulemaking, warning that if OSHA did not meet its deadline, the proposed standard would become effective in the interim, right? So again, hey, come up with some rules for the spread of of HIV in the workplace, right, in the late 80s.

0:31:04 Andrew: Hard to imagine that OSHA would have the ability to craft standards to prevent the spread of HIV and the workplace and not the spread of COVID-19. Continuing, and I'm skipping over about half of these, right? In 2000, Congress passed the Needle Stick Safety and Prevention Act, directing OSHA to strengthen its bloodborne pathogen standard and provide language for the regulatory text. And then there's an internal discussion on that. And then it says, and finally, removing any basis for doubt that OSHA is authorized to regulate infectious diseases, Congress expressly included funding for OSHA in the American Rescue Plan that is to be used, quote, to carry out COVID-19-related worker protection activities, end of quote. So yeah, by the way, there is your express authorization from COVID.

0:31:52 Andrew: COVID. And then the Sixth Circuit, just going to read the conclusion of that segment because it's really well taken. It says, the claim that COVID-19 exists outside the workplace and thus is not a grave danger in the workplace is equally unavailing. As discussed above, OSHA routinely regulates hazards that exist both inside and outside the marketplace, They right? Don't re-mention the HIV thing, but that's pretty good example. More to the point, OSHA here demonstrated with substantial evidence that the nature of the workplace, commonplace across the country and in virtually every industry, presents a heightened risk of exposure. Because duh, of course it is. This was your common sense, like, yeah, when I'm in my house, I can stay six feet away from people that I know are unvaccinated. When I'm In a cubicle, I Can't Stay Six Inches Apart from These People.

0:32:08 Thomas: Yeah, yeah, yeah. Yeah, retail

0:32:43 Andrew: Yeah. Presents a heightened risk of exposure. Union petitioners illustrate this point as well. Within one week in mid-November, Michigan had reported 162 COVID-19 outbreaks, 157 of which were in workplaces. Tennessee reported 280, 161 of which were in workplaces, Washington State reported 65, of which 58 were in workplaces and other states similarly experienced outbreaks breaks. Predominantly in the workplace, COVID-19 is clearly a danger that exists in the workplace. So you want to ask your Negatron question?

0:32:43 Thomas: Or sure that there's that question, but I'm also busy, you ruminating on how depressing it is that like this isn't some small town judge, you you know, like my hometown of Angels Camp, California did a dumb ruling. Like this is an entire circuit court that could be this bad at their jobs. You know, it just, it bums me out, Andrew. I, again, we can't ever let up because this is what happens. I mean, these judges get into power for life and they issue rulings that are just absurd. Like there's no, I hope someday we're able to, you know, courts can just respond with memes. Like you don't even need to just do like some sort of like embarrassment meme of like, I can't believe this is even a ruling. Like, yes, of course, OSHA can regulate this. But this is, again, the fifth, this is an entire circuit. They get to ruin people's lives every day that we probably don't read about. So please, please keep voting and keep voting, Democrat, everybody.

0:33:38 Andrew: Yeah. Yeah, that's.

0:34:16 Thomas: Appreciate that. So, Andrew, will the Supreme Court be able to overturn this?

0:34:21 Andrew: So yes, this will go up to the Supreme Court. And the question I thought you might ask is, could Could this be a vehicle? Because this will be on the court's shadow docket, right? This will be a question of, does the Supreme Court issue an emergency stay of the Sixth Circuit's dissolution order, Could right. They use this this case on the shadow doocket to implicitly or or even explicitly overrule Chevron.

0:34:31 Thomas: Ooh,

0:34:48 Andrew: Yeah, so represents the worst-case scenario. That continues to be possible.

0:34:46 Thomas: Get rid of Chevron? Yeah, right. Well, but wouldn't it be the analogy would be what they did with Roe, where it's like won't, they won't overturn Chevron. It'll just be like, oh, this looks like they intend to, right? Because could they overturn something with the shadow docket? It.

0:35:07 Andrew: Yeah, put a big pin in that. That's too big a question to answer here. But no, no, but it's a great question to raise. I But want, and I don't know, maybe we get the clip Die Hard of it's uh christmas theo it's the time for miracles right uh I want to suggest this would be a very very bad case on the facts uh to to to do that um the osha findings contain 153 pages of findings of explicit findings of fact right it is the reason why the Fifth Circuit went the Chevron Step Zero route? Because if you look at the merits of the order itself, it is just abundantly clear that this is rational. It is well-tailored to the workplace. Want to remind folks, right, as the Sixth Circuit does, that the order, while it's called a vaccination order, right, does not actually require that an employer make sure that its employees are vaccinated. It gives them a bunch of options, As right?

0:35:08 Thomas: Okay, sorry.

0:35:28 Thomas: Right. Yeah.

0:36:17 Andrew: The Sixth Circuit says, the ETS does not require anyone to be vaccinated. It allows covered employers, that is only those with 100 or more employees, right. You can't come up with any edge case. Once you're at 100 employees, you're a major employer, right, to determine for themselves how to best minimize the risk of contracting COVID in the workplace. They can opt out of the vaccination policies. They can require unvaccinated workers to wear a mask on the job and test for COVID weekly. They can require those workers go do their jobs exclusively from home, and workers who work exclusively outdoors are exempt. The employer, not OSHA, can require that its workers get vaccinated, something that countless employers across the country have already done.

And I think that's kind of a good way to sort of bring that to a conclusion. We are seeing the effects in the free market of employers who have said, yeah, we're going to make sure that our employees are vaccinated. And, uh, I I'm hoping that the combination of, you know, that thing that the right wing is supposed to like, plus the meticulousness and degree of fact-finding here will keep this decision intact.

0:36:30 Thomas: All

0:37:23 Andrew: So, you know, feel free to send me Andrew-was-wrong emails when it doesn't happen, but I have a little bit of optimism about this.

0:37:31 Thomas: Was that optimism though? Was that, that they won't overturn Chevron or just that they, are you optimistic that they Won't even reverse this decision?

0:37:40 Andrew: My optimism is that they will not stay or reverse the Sixth Circuit decision. So you That's a pretty big limb, but it

0:37:45 Thomas: All right, well, yeah. If I forget your, your recent track record on optimism, That makes me very optimistic as well. All right.

0:37:53 Andrew: Feels like it's worth going out on right now.

0:37:58 Thomas: It's Christmas. Okay. Yeah.

0:38:00 Andrew: It's Christmas, Theo.

0:38:04 Thomas: This show's brought to you by Xchair. Folks, it's the holidays, and guess what? You deserve a gift. Well, how about the gift that keeps on giving you joy and comfort every day, all year long? A gift that looks as good as it feels, and a gift that will actually pay for itself in terms of how much more productive you'll be at work. I'm talking about giving yourself the gift of an Xchair! I absolutely love mine. It's ergonomic chair I've ever used, and honestly, it's also probably the coolest looking piece of furniture I own. Not only is Xchair the world's greatest office chair, but with its patented LMAX technology, it doubles as a massage chair and can either cool down or warm your back. Can your office chair do that? I don't think so. Now is the perfect time to purchase an Xchair. Buy early, buy now.

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0:39:14 Clip: Arrest a husband and wife for the same crime. Yeah, I don't think that that's true, Dad. Not that we're still...

0:39:24 Thomas: Well, let's talk about some bad law. I just want to give you a shout out, Andrew, because on aisle 45 pod, I heard you say cargo cult lawyering, which which is objectively a hilarious and brilliant term for what goes on with whether it's the Kraken lawyers or Trump's lawyers. I just thought that was so brilliant. It's such a great description of the lawyering that's going on with these Trump lawyers. They're doing something that resembles lawyery. They've got, they're filing things, you know, like it's unclear what's written on these things or if it would ever do any good. So I thought that was a really brilliant description. What's today's cargo cult lawyring that we're looking at?

0:39:54 Andrew: Well, Thank, thank you for the kind words. And, you know, this is part of inherent in the idea that when we read the complaint on Opening Arguments, we read backwards, right? This is what I walk the Knowledge Fight listeners through on my appearance on that show as well. Wow. And the first thing that you want to do is say, okay, the people who are handling this case, the kind of people who handle these kinds of cases? Or, like in the Alex Jones case, for example, is it a Connecticut DUI firm that is handling, I am 100% not making that up, right, that is now handling your lawsuit against Congress. And that brings us to kind of an update on John Eastman and the lawyers that he managed to track down a week ago on episode 552.

0:40:58 Andrew: We mentioned the sort of numerous defects that were docketed by the court in connection with his lawsuit. And the kind of of things. I have a case right now where I have made a mistake. Lawyers make mistakes, right? It is not about you accidentally filed the wrong thing or you got a typo here or whatever.

It is about an illustration of is this part of your practice, right, and so the Eastman lawyers filed, filed their complaint against the 1-6 Committee and, you know, failed to file a civil cover sheet and failed to get the summonses to go to the Attorney General and, you know, mixed in a bunch of requests, including a request to link the Meadows versus Pelosi case as a related case, and it was all just kind of like thrown in there and the court, know, issued you what are called minute orders, they just show up on the docket, they have the effect of, you know, a full written order and opinion, but it's not, you know, if you've read any of the opinions we link in the show notes sometimes, this is a much more informal way of doing it, of saying, like, hey, fix this stuff? And so we talked last week about how Eastman was ordered to fix this on December 15th, and the weekend came and went, and he decided not to fix it.

0:42:24 Andrew: So So a

0:42:24 Thomas: Is that a good good thing to do as a lawyer?

0:42:26 Andrew: Great strategy.

0:42:27 Thomas: Not great. Okay.

0:42:28 Andrew: And so the court on the 20th issued another notice, is called a notice of error, that said, hey, you've done, because on the 17th they made a couple of corrections, right? Right. They requested the summonses they noticed the related case. But on the 20th, the court was like, you still haven't filled out the civil cover sheet. You haven't said what the nature of the suit is. Right.

0:42:56 Thomas: You didn't put your name

0:42:57 Andrew: Like, yeah, You got it right. It's like it's exactly like that on the S.A.T. Right. Like you got to come on, man, fill out the bubbles. Right? And then nothing happened on the 20th. And so on the 21st, Tuesday the 21st, the court said, okay, now what we're doing is issuing an order to show cause, right? The first one says, hey, this is a notice of error. This is a thing you've got to do to fix because, you know, you might have made a mistake. On Tuesday, the Court said, "Plaintiff is hereby ordered to show cause on or before December 28th," that gave them a week, "why this case should not be dismissed given plaintiff's failure to remedy the errors that the clerk's office identified with his filing and asked plaintiff to correct on December 15th and 20th."

0:42:58 Thomas: On it.

0:43:48 Thomas: So see me after class. Yeah, this is, I mean, they're actually pretty lenient. Like, it sounds like they give them a lot of chances.

0:43:50 Andrew: Yeah. One more, because we're going to see. So got counsel's attention, and they filed. I have uploaded the document to the opening arguments website, will be linked in the show note. I think they decided to go with the Emily Newman, it's my first day defense, right? So here is the show cause order. It's got four paragraphs. Number one, upon filing this action, plaintiff received via email a notice of error from the court on December 15th, requesting corrections to the initiating paperwork. Counsel attempted to make responsive filings on December 16th, but experienced a technical problem with ECF.

0:44:32 Andrew: Okay, that can happen. Will point out that ECF, that's the electronic filing system, is available 24-7? So when I've had problems, and right, look, I actually came close to having to, I had to write up an affidavit for this, right. Because we had a deadline of, let's say, June 1. And I went to start filing it at like 9 p.m. on June 1, and the ECF was not accepting. It kept barfing every time I tried to upload the document.

And I tried and I tried, and all of a sudden it was like 11 o'clock. And so what I did was I then took a screenshot and wrote a supplemental affidavit in the case that, But, you know, I was going to have to sit there and file it at 1 in the morning and have to say, OK, we missed June 1 by an hour and a half because the website was down, see attached photos, right? So, So counsel attempted to make responsive files, Point number two, plaintiff contacted support services on December 16th. So, again, I'm not saying all lawyers have to do this. I know I stayed up late into the night when my thing wouldn't go through. They were like, eh, I'll just call the court in the morning. A little cavalier, but okay. Plaintiff contacted support services on December 16th for assistance with the technical issue. A response was received at 8.51 p.m. on that date, indicating that the technical issue should be resolved.

That response not included in this pleading. By the way, I would, if I got a show cause order, I am going to have screenshots. I'm going tohave emails. I'mgoing to document everything. This does not. The technical issue having been resolved, plaintiff then made two filings on December 17th in response to the December 15th notice of error. Two things I want to say here.

0:45:30 Thomas: Sure. Stuff happens. Yeah.

0:46:18 Andrew: Number one, court tells you at 9 o'clock that the technical issue is fixed. You file your thing at 9.05 p.m., right? But two, they filed, the two filings they made were the request for the summons and the notice of the related case. They still didn't submit the cover sheet, right? And there's just no excuse for the failure to have done that. Point three, this court issued a notice of error on December 20th, stating that undersigned counsel still needed to make a change to the civil case cover sheet. Although the docket entry stated the notice was emailed, undersigned counsel can find no record of having received such email. So now we're in a pretty unlikely situation, right? Like both ECF

0:46:24 Thomas: Yeah. Yeah. Yeah. My

0:46:55 Andrew: Was down, and I didn't get the email, and my dog peed on it.

0:46:56 Thomas: Dog ate my filing. Yeah. Yeah.

0:47:00 Andrew: Yeah, right. Again, that notice was in the very first 12-15 notice of error. And then number four, upon receiving this court's order to show cause, undersign counsel submitted an amended civil case cover sheet as requested, it, they did. And I will tell you, we're recording this a day early on Wednesday, December 22nd. And of today, there's been a docket entry that the case has been assigned to Judge Carl J. Nichols to have it permanently. And so that strikes me as highly likely that the court's just going to roll its eyes. It's not going to bounce them for all of these technical defects. Because look, in general, right, if it's anybody other than John Eastman, right, it's just a, you know, a normal person, you want to be like, all right, fine, but like, get your stuff get together.

0:47:00 Thomas: Yeah.

0:47:47 Andrew: For John Eastman I was really, really hoping they would just bounce it in its entirety. Looks like, looks like they're going to get away with it.

0:47:54 Thomas: They are exceedingly patient with these shenanigans.

0:47:57 Andrew: In the the abstract, you want to do that. So there you go.

0:47:59 Thomas: Mm hmm. Yeah. Oh, boy. That's Well, how not to be a lawyer.

0:48:06 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:48:13 Thomas: Now it's time for T3BE. That is Thomas takes the bar exam each and every week. I attempt to answer a bar question using only my good looks.

0:48:23 Andrew: I Seeing right, Thomas, a defendant is prosecuted for battery after being involved in a fight at a sporting event. We'll say hockey. The defendant claims that the victim started the fight and that the defendant was acting in self-defense. At trial, the defendant called a witness that testified that the victim had a reputation for being belligerent and occasionally violent. The prosecution wishes to respond by calling its own witness that will testify that the defendant is known for his own hot temper and is feared in the community for getting violent over the smallest things.

0:48:31 Thomas: Oh, okay. Wow.

0:48:58 Andrew: Is the prosecution's action proper? A, yes, because when a victim's character is attacked, the prosecution can rebut with evidence of the victim's same character trait. Okay. B, yes, because when a defendant claims self-defense, he automatically places his or her character for violence in issue. C, no, because the defendant never opened the door by placing his character for silence in issue or D, no because the prosecutor is limited to introducing evidence regarding the victim's character that contradicts the defendant's evidence.

0:49:11 Thomas: Okay. If that's what it is, I'm quitting the law.

0:49:25 Thomas: Aha.

0:49:34 Thomas: Interesting. I love, okay, I love A is hilarious to me and I can't wait for that to somehow be the right answer so I can be just an idiot. But I love this idea idea that like, it's like too quoque. Like if the victim's character is attacked, then you can rebut with evidence of the same character trait. So like if I rob somebody and they're like, here, we're going to introduce a, well, how about this? If I carjack somebody and then they're like, oh, we're to introduced evidence that, uh, characterizes Thomas as a carjacker. Can I be like, well yes, but also the victim is a carjacker. You can only do the same trait. Wait, that seems weird. There's no way that's it. If that's it, then I quit the law. So I'm already eliminating A just without even going back through the question.

0:50:20 Thomas: Now let's go back through The Question. Now if it was hockey, we're going to have to assume this is not, players on the ice. This is people in the stands, you know. Because if it's on the Ice, I think it's fine. There's No Lawsuit here. All right so So we have, make sure I distill it down to the facts. Somebody's being prosecuted. Now, I don't know if this will matter, but I'm learning to notice that. So prosecute. So we're in criminal court. This is not like a tort. We're not suing someone civilly for any of this. This is being prosecute, criminal. Involved in a fight. Now, his defense is With self-defense, which is an affirmative defense, as Andrew always says. I don't know if that matters here, but just going through what I know. And they're they're claiming that the victim actually started the fight. And so now the defendant wants to call a witness that testifies that the victim has a reputation for being belligerent and occasionally violent.

0:51:08 Thomas: That seems fine, but I guess that's not really a question because what we really are asking about is the prosecution's response. So the prosecution wishes to respond by calling its own witness that will testify that the defendant is known for his hot temper and is feared in the community for getting violent over the smallest things. Okay. So it's interesting. I don't know what the answer would be if this, forget the first thing, and the prosecution was just like, I want to call a witness that says this person is known för der hot temper. That's one question, and I'm not sure if that's a different question than like, oh, well, oh yeah, well, in response, we want to call. So I don't know if the different rules would apply depending on if you're doing this just normally or in response to something, but set that aside.

0:51:53 Thomas: Is the prosecution's action proper? A, I'm already eliminating because if that said, I can quit the law. It's fine. I retire. I've had a good run at law. B, yes, because when a victim claims self-defense, he or she automatically places his or her character for violence at issue. I don't think that makes sense. I mean, if somebody just barges into my house and hit him with a baseball bat, do I automatically place my character for violence at issue? And you know what? I'm remembering Andrew saying, be wary of this this always language, you know, that just sounds too broad. Maybe I'm wrong here, but I think B is wrong. So once again, I've already eliminated two yes answers.

Now there are no answers. C, no, because the defendant never opened the door by placing his character for violence and issue. That is plausible to me. So it would be like, had the defendant Offered a witness that was like, oh, he's never heard of fly, you know, the guy from Psycho or or something. I never even heard of a harmless little fly. You know, then the prosecution would be like, oh yeah, well, we've got our own witness with blackjack and hookers that says, yes, you are violent. So C is plausible, certainly. D, no, because the prosecution is limited to introducing evidence regarding the victim's character that contradicts the defendant's evidence. Interesting.

That's also plausible because, okay, does the order of things matter? Now, when it says a defendant called a witness, does that, I think that means, I think that means that the prosecution has already done their side, right? Because isn't it the prosecution, the prosecution must go first, I think, and then the defendant gets the last word and defends themselves.

0:53:44 Thomas: So I think I'm leaning toward D because we're at the stage of the trial where I think you'd have to be contradicting their evidence. I think. Is that right? I don't know if that's right. Maybe. Because if the defendant called a witness and testified such and such, the prosecution wants to respond. And I don't think the prosecution can respond. I think the prosecution would have had to already do this on their own, possibly. I am leaning toward D, because I think the prosecution could introduce evidence contradicting the defendant's evidence. Yeah, I'm going with D. I'm on a skid here, so no confidence in it, but I think that's what's going on here. It's between C and D, and D is my final answer.

0:54:30 Andrew: Right. And if you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

0:54:43 Clip: And thank you, Let's go!

0:54:45 Thomas: And now it's time to thank our new patrons real quick, who will be enjoying the Law'd Awful Movies if they're at that $2 level reminder, bump up to that $1 level if you want that Law'd Awful Movies and I'll just do it real quick. Thank you to Stephanie Groves. L and then there's some symbols. Sorry, got messed up. And then El Señor Tenebroso, George Corbin, Douglas, Maxwell Ain, JohnnyBeGood and Murmur Tapiridae. Interesting one. Okay, thank you so much, new patrons, for pledging. We love you.

0:54:54 Andrew: Yes.

0:55:16 Thomas: And that's our show, Andrew.

0:55:19 Andrew: Do. Excellent.

0:55:21 Thomas: Throwing a ho-ho-ho there.

0:55:23 Andrew: Ho.

0:55:23 Thomas: Happy holidays to everybody, whatever you're celebrating. And Merry Christmas to you, Andrew!

0:55:23 Andrew: Ho. Ho, yeah. You too, Thomas.

0:55:31 Thomas: Hope everyone has a fun time, and we'll see you next time.

0:55:34 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:56:08 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.