The president should not — and most likely does not — have the power to unilaterally compel millions of private-sector workers to get vaccinated or risk losing their jobs: Mr. Biden is presiding over a vast expansion of federal authority, one that Democrats will certainly come to regret the next time a Republican takes power. Moreover, the mechanism of enforcement — a presidential decree smuggled into law by the Department of Labor and its Occupational Safety and Health Administration — is fundamentally undemocratic. Congress is supposed to make new laws, not an unaccountable bureaucratic agency.
While more than 70 percent of American adults have received a shot, a smaller but sizable group of people, for various reasons, are unvaccinated. Some members of this group have antibodies from a previous Covid case and are reasonably protected from future illness, according to recent data. There is little benefit to forcing vaccination on such people, and Mr. Biden’s decision to not exempt them is a significant misstep.
It’s worth repeating that the federal vaccine mandate represents a broad expansion of the executive branch’s power. And Mr. Biden will not be the chief executive forever. Gov. Ron DeSantis of Florida, a plausible 2024 Republican presidential candidate, has used his current authority to prohibit private vaccine mandates in his state. Is this really the time to solidify the idea that the president is the ultimate authority on whether such things should be required or forbidden?
“We need to start looking at the choice to remain unvaccinated the same as we look at driving while intoxicated,” she told CNN’s Chris Cuomo Thursday night. “You have the option to not get vaccinated if you want, but then you can’t go out in public.”
Wen elaborated that society has an “obligation to prevent” the unvaccinated from leaving their homes and infecting others, in the same way that society has an obligation to deter drunk drivers.
“The vaccinated should not have to pay the price for the so-called choices of the unvaccinated anymore,” she continued.
This is a tortured analogy, since the unvaccinated do not actually pose much of a risk to the vaccinated. In recent weeks, the unvaccinated have constituted 99 percent of hospitalizations and deaths. The unvaccinated aren’t drunk drivers—they’re more like drivers who won’t buckle their seat belts, and are only likely to crash into other unbelted drivers. They are the victims of their own bad choices, and the government shouldn’t force them to make better ones.
Philip Klein asks: “If COVID-19 will be here forever, is this what you want the rest of your life to look like?” (HT Ian Fillmore) Two slices:
In March of 2020, the outside estimates were that this coronavirus period would come to an end when safe and effective vaccines became widely available. Even the infamous Imperial College London report, viewed as draconian at the time for its estimate of up to 2.2 million deaths in the U.S. absent sustained intervention, predicted that its mitigation strategies “will need to be maintained until a vaccine becomes available.” Yet vaccines have been available for anybody who wants one for nearly six months, and our leaders have ignored the obvious off-ramp. The CDC backtracked on guidance and said that vaccinated people must wear masks in public, and many people and jurisdictions have listened. For example, Montgomery County, Md., has an extraordinarily high vaccination rate — with 96 percent of the eligible over-twelve population having received at least one dose and 87 percent of them being fully vaccinated. By its own metrics, the county has “low utilization” of hospital beds. Yet the county requires masks indoors — including in schools. In Oregon, vaccinated people are required to wear masks even outdoors. And it isn’t just liberal enclaves. A new Economist/YouGov poll found that eight in ten Americans report having worn a mask in the past week at least “some of the time” when outside their homes, with 58 percent masking “always” or “most of the time.” If masking has remained so widespread among adults months after vaccines became widely available, why will it end in schools after vaccines become available for children?
Whatever arguments were made to justify interventions early on in the pandemic, post-vaccine, we are in a much different universe. There is a negligible statistical difference in the likelihood of severe health consequences between vaccinated people who go about their business without taking extra precautions, and those who take additional precautions. Yet having to observe various protocols in perpetuity translates into a reduced quality of life. Put another way, the sort of question we need to start asking ourselves is not whether we can tolerate masking for one trip to the grocery store, but whether we want to live in a society in which we can never again go shopping without a mask.
And others have suggested that the founders supported such mandates and that the Supreme Court has ruled on this. Charlie had a smart post on this earlier today, but the fact that George Washington supported inoculation of troops in the Continental Army and the fact that the Supreme Court has upheld vaccination mandates in the past has zero bearing on the current discussion. The 1905 Supreme Court case, Jacobson v Massachusetts, concerned a small-pox vaccination requirement in Cambridge, Mass. The court concluded that, “It is within the police power of a State to enact a compulsory vaccination law…” The federal government does not have police power. OSHA, the entity through which Biden is going to issue this mandate, wasn’t even created until 65 years after the Jacobson decision. Though we do not yet have a formal order, the Biden administration has indicated that it would have OSHA issue an Emergency Temporary Standard. Legal challenges will likely hinge on whether OSHA exceeded its authority by leaning on this rarely deployed mechanism for such sweeping ends. The fact that Pfeiffer and others point to state level requirements and requirements for the military (who are government employees), again, has no relevance at all to the debate over whether what OSHA is about to do is legally permissible. Regardless of whether one believes that this is within Biden’s power, let’s be clear that what OSHA is about to do would be without precedent.
Jacobson was a state case, not a federal one. Phillips (or CNN’s Chris Cillizza, who used to write The Fix and retweeted Phillips’s mistaken analysis) might have guessed that from the v. Massachusettspart of the case’s name. It established that state governments can require vaccinations (in this case through municipalities). The reason it came before the Supreme Court was to decide whether Massachusetts vaccine mandates were in violation of the 14th Amendment. (Another case, from 1944, which is mentioned in passing by Phillips, considered a religion-based objection to vaccines and also came down on the pro-vaccine mandate side, but that was also a state matter: Prince v. Massachusetts.)
Several governors have announced opposition to Biden’s vaccine mandate. They obviously will not argue that states are forbidden to mandate vaccines. The issue is whether the federal government has the enumerated power to force businesses of more than 100 employees to mandate vaccination (or do weekly testing). Phillips suggests she does not understand the distinction between state and federal power when she writes that the Supreme Court “decided that jurisdictions do have the right to require people to get vaccinated.” Does she consider the entire country a federal “jurisdiction”?
Do I exaggerate? Like Presidents Obama and Trump before him, Biden has repeatedly expressed the idea that should Congress not act the way he prefers, he thereby gains special license to legislate via executive order. Today he baldly stated state governments were a hindrance to the executive branch’s ability to work its will on the American people.
“If they’ll not help, if these governors won’t help us beat the pandemic, I’ll use my power as president to get them out of the way,” Biden said, shredding the concept of federalism.