The Chief brought up a re-tweet last year by White House chief of staff Ronald Klain hailing the mandate as the “ultimate work-around.” “I mean, this has been referred to the approach as a work-around. And I’m wondering what it is you’re trying to work around?” the Chief asked, adding it is “hard to argue” that Congress has given such “free rein” to OSHA, the agency that promulgated the mandate.
Ouch. Chief Justice Roberts is especially attuned to executive decisions that duck proper legal procedure, as he showed in tossing the Trump Administration’s Census citizenship question.
Solicitor General Elizabeth Prelogar responded gamely, arguing that the unprecedented nature of the pandemic allows the government sweeping power to take unprecedented measures. But she couldn’t articulate a limiting principle to OSHA’s emergency power—perhaps because the Administration doesn’t seem to think one exists.
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