The decision on the OSHA mandate was 6-3; the decision on the CMS mandate was 5-4, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the court’s three Democratic appointees in upholding it.
The Court had appeared skeptical of the mandates during oral arguments, especially the OSHA mandate, as Solicitor General Elizabeth Prelogar struggled to identify the statutory authority for imposing it.
Chief Justice Roberts had seemed particularly irritated by a comment by MSNBC anchor Stephanie Ruhle that had been retweeted by White House Chief of Staff Ron Klain, which referred to the OSHA mandate as a “workaround.”
The conservative justices seemed concerned during oral arguments about the CMS mandate’s use of the federal spending power to pressure institutions accepting Medicare and Medicare funding to comply, but the more limited scope of the mandate, at least compared to the OSHA mandate’s more blatant intrusion into the private sector, appeared to save it.
The oral arguments were also noteworthy for the many false statements made by the justices about the coronavirus pandemic, notably Justice Sonia Sotomayor’s claim that 100,000 children were hospitalized with covid. ✪
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