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What the Supreme Court vaccine mandate decisions mean for the future of the pandemic.

On a recent episode of Amicus, Dahlia Lithwick spoke with Andy Slavitt, former senior adviser to Biden’s White House pandemic response team, about the omicron surge and the two major vaccine mandate decisions handed down by the Supreme Court last week. Slavitt also served as acting administrator of the Centers for Medicare and Medicaid Services from 2015 to 2017, and hosts the In the Bubble podcast. Their conversation has been condensed and edited for clarity.

Dahlia Lithwick: I wanted to have you here this week to help us understand the reality in terms of omicron, in terms of mitigation efforts and what is happening on the ground, all around us, as experts try to deal with this pandemic in real time. You told NPR less than a month ago we will have to focus in on how full the ICUs are. My question is: Is that still what matters to you, and are we there or about there now?

Andy Slavitt: Well, those numbers are just mind-boggling, aren’t they? They’re almost hard to imagine. Sadly, they’re only going to get worse before they get better. We’re talking about anywhere from 2 percent to 3 percent of the country getting sick every day with this virus. It is indeed a virus that is mild—or it doesn’t like to attack our lungs; it likes to stay in the upper airways, which makes it more spreadable. That means it does less damage to us and that, combined with the fact that we’ve got a country that is, for all of the arguing to and fro, largely vaccinated, at least among adults, means it’s less severe.

But the reason the ICUs are indeed the place for us to be watching and concerned about is because with large, large numbers of people getting the virus, that’s enough—even mild cases—to push people into the hospital.

Now, two types of people tend to be going into the hospital from all the data we’ve seen. People who are unvaccinated are going to the hospital in much greater numbers, and that includes kids 0 to 5. So let’s not forget that there are people that can’t be vaccinated. People with preexisting medical conditions are also a large percentage of the people. Even if they’ve been vaccinated, there are complications. And lest we get coldhearted, these were the same people that many of us fought for during the Affordable Care Act. These are human beings.

The stories I’m hearing are about folks who can’t get necessary surgeries, folks who are standing in lines for ERs, for a bed, supply chain disruptions. This is tangibly, materially affecting health care for everyone, not just people who have COVID. We’re there, right?

This is a crisis in fast motion. And what that means is you can look at the community, and on a Friday of one week, the danger level could be quite moderate. And on the Monday of the following week, you could be at crisis levels of spread. That’s what exponential spread means. It’s not a concept that our brains naturally understand because when you look outside, things look exactly the same. This is an invisible virus, and you can’t see things, but if you did go inside these hospitals, what you’d see, in many communities, are staff that just simply can’t take care of people.

Before we move on to the decisions on Thursday, I just want to flag that you are trying to make this point about the reality around us—what we perceive and what we can accurately assess and where we are wrong. You tweeted, “In today’s Supreme Court case, lawyers who have COVID and aren’t allowed in the Supreme Court building are arguing that other people should have to go to work with unvaccinated/untested people.” And I think your tweet captured the reality. We had two oral advocates from two of the states who are resisting the vaccine-or-test mandate who couldn’t come in because they tested positive. We had the justices, with the exception of Justice Gorsuch, wearing masks. The reality of what the justices themselves were actually experiencing in their workplace didn’t map onto how they were talking about other workplaces.

It reminded me a little bit of some of the language in Heller, the gun case, where Justice Scalia was really scrupulous to say, but no matter what happens, it would be insane to let people bring guns into federal buildings. That would be nuts because I’m sitting in one. And I wondered if you could help us think through how this reality that was happening in the court was so dissociated from the reality that you are describing out in the world.

Let me put it in this context: We could be critical of President Biden for anything we want to; he wants to be held accountable. He cares, in my conversations with him, about one thing only, and that’s the lives of Americans. And if anything, he runs toward these challenges. So he didn’t predict omicron. But, in the last few days, he’s announced a billion new tests coming. He’s announced 20,000 new testing sites. And occasionally, it would be useful for the media to contrast that with, say, Ron DeSantis, who made the decision that he’s going to pay people a cash bonus who decide not to get vaccinated and lose their jobs, with states that have outlawed any amount of public health support, including mask mandates, with people who’ve taken power away from the public health officials and given it to school districts to decide whether kids should wear masks. These are people that are elongating the virus.

We have to remember that the first year of this crisis response was very different. We had a president who denied any accountability for the response, and those people are still out there. And they’re bringing cases to the Supreme Court to try to prevent public health actions, trying to keep our workplaces from being kept safe. And I just wonder if they were spending all this creative energy fighting the virus, instead of fighting the people who are fighting the virus, maybe we’d be in a lot better place.

One of the things that was so weird to me in that first case, which was the OSHA case, NFIB v. Department of Labor, which involves an emergency temporary standard, trying to respond to a crisis that is morphing by the week. The emergency rule that OSHA put out required employers with 100 or more workers to give their staff a choice between getting the vaccine or a weekly mask-and-testing regime in the workplace. Eighty-four million people would’ve been affected, and OSHA roots its own statutory authority to do this in a federal law that allows OSHA to protect employees from “a grave danger,” resulting from “physically harmful agents,” or a “new hazard”—sounds kind of like we’re in that bucket.

And we have a group of red states, as you say, who file suit and then the argument unfolds, and it is literally like my great-uncles sitting around the dinner table, bickering about risk, a thing they don’t understand. And so then you get into fights about, “Oh, Sonia Sotomayor got the number of kids wrong,” and “Oh, Neil Gorsuch may or may not have misstated how many people die as a result of seasonal flu.” I guess I’m asking what’s it like to watch the theater of what should be a legal, statutory, constitutional conversation playing out with weird sound bites about whether this is more or less like the flu.

I’m a great respecter of the Constitution. And the idea that these are things that are running roughshod over the Constitution is just wrong. These are authorities that Congress gave to our agencies to act in emergencies. And we have a very conservative court and these cases are formed, as much as justices don’t like to admit it, by public perception, by their own perceptions. And I don’t know who advised them. I’m sure that their clerks did some research for them to come out with these statements. But these are not the people who should be making public health proclamations. They should be looking at the constitutionality of what was done.

And look, I’m willing to accept the fact that sometimes the right thing that should happen can’t happen because our laws don’t allow it. That’s unfortunate. But it wasn’t the case here. Here, it was pretty obvious that we’re sending people into a very hazardous situation. Don’t picture your own workplace. Picture a meatpacking plant, picture a clerk at a store that’s got to deal with hundreds and hundreds of people every day. Picture people who are enclosed in basements at an Amazon warehouse sorting packages with people next to them. Would you be comfortable there? And does the agency that in 1970 was given exactly the authorities that you described—does that agency have the power to at least say, “Look, the person next to you, they don’t have to get vaccinated. But if they don’t get vaccinated, they should be wearing a mask, or they should be getting tested.” And so they were wrong. They were wrong in that part of the case.

It seems to me that the nut of the unsigned 6-to-3 opinion seemed to be the court saying that OSHA exceeded its statutory authority because it only has jurisdiction over the workplace, but the pandemic exists both inside and outside the workplace. And it is not therefore the kind of “grave danger” envisioned by the statute, and it “falls outside of OSHA’s sphere of expertise.” And the court found, that “permitting OSHA to regulate the hazards of daily life, simply because most Americans have jobs and face those same risks while on the clock, would significantly expand OSHA’s regulatory authority without clear congressional authorization.” And OSHA, of course, put in heaps and heaps of evidence suggesting that COVID-19 poses special risks in most workplaces. Can you talk a little bit about this inside the workplace versus outside the workplace distinction that the court hinged pretty much this entire decision upon?

Well, it doesn’t pass our commonsense test because in every place else I go, I can control my setting. I can decide whether I want to go into a particular store or not. I can decide whether or not I want to go into a movie theater or a concert or go to a gym to work out. I don’t have a lot of choice into whether or not I have to go to my job. For most Americans, that’s simply not an option. It’s a place they’re required to be.

And it’s because they’re required to be there that we have this agency, OSHA, that’s designed to ensure that those places are safe. And if it wasn’t for OSHA, there wouldn’t be nearly the precautions that we’d see around sharp equipment and machinery, of children in the workplace—it’s just a lot of things that I think we all know need to be regulated and why this isn’t one of them, because of this fine distinction that they’re trying to draw, which says, “Well, this isn’t a workplace hazard. This is a hazard hazard.” It is a place for someone with an answer, already in mind, to go find an argument, as opposed to a person looking to answer what happens when you evaluate an honest argument.

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

Well, I’ve signed onto an amicus brief on this topic, and I also ran the agency that runs Medicare. And it’s as simple as the power of the purse. It’s as simple as if you go to the store and you see a defective product, you don’t have to spend your money on it. And if you’re charged with spending taxpayer money, then you have a right to say, “Hey, I expect a certain level of standards for this money. I expect them to keep Medicare and Medicaid patients safe, or why would I spend the money here?”

Think about people who spend federal money. What if the Department of Defense ordered a fighter jet from Lockheed Martin, and the fighter jet showed up, and it didn’t have any of the equipment in the dash and it was unsafe to fly. Would we expect the Department of Defense to have to pay for that fighter jet? Of course not. So to me, this is very simply: It’s the job of the federal agencies who are spending this money to make sure they’re spending it only on care that is safe for people. And it’s hard to argue that people are safe going into facilities where there’s a lot of unvaccinated staff.

And before we say goodbye, just let me know what the practical effect is of the OSHA mandate being set aside. What does that mean in the coming days?

United Airlines, and its CEO Scott Kirby, was the first company to decide to implement a vaccine mandate. And before he implemented that mandate, he had one employee per week die. Since he’s implemented it, he’s had no deaths and dramatically reduced cases. And so arguably, every employer who cares about their employees has the ability to implement this vaccine requirement. And so does every state. And so does every local government.

And so like everything else, like happened with Medicaid expansion a few years back, we’re going to have the haves and the have nots. If you live and work in states or for employers that care about public health and safety, you’ll be able to go to a workplace that’s much safer. And if you don’t, you won’t. Look, this case has been decided. It’s, in my view, not the correct decision. But each of us has to take accountability for making this country as safe as possible. And if you operate a workplace and you are willing to let people come into that workplace and potentially be the site of a superspreader event, shame on you.

To hear the entire discussion, listen below, or subscribe to the show on Apple PodcastsOvercastSpotifyStitcherGoogle Play, or wherever you get your podcasts.

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