There is quite a difference of opinion on the vaccine mandate which President Biden announced yesterday. At The New Republic, for example, Tim Noah is enthusiastic:
President Biden is imposing the most comprehensive Covid vaccine mandates thus far, requiring federal employees and most private sector workers to get vaccinated.
The new mandates to combat the delta variant, which is starting to slacken economic growth and perhaps even the ferociously tight labor market, arrive after months of dithering within the Biden administration over how aggressively to police workplaces about Covid-19.
[…]
I’ve been very hard on Biden’s reluctance to impose health protections against Covid-19 in the workplace. He waited way too long. But he seems now to be making good on his promises. With new Covid cases approaching January’s levels, Thursday’s moves are better late than never.
and the editors of the New York Times are supportive:
Faced with this avoidable catastrophe, President Biden is right to order tighter vaccine rules, which he did for roughly two-thirds of the nation’s work force on Thursday. “We’ve been patient,†Mr. Biden told vaccine holdouts. “But our patience is wearing thin. And your refusal has cost all of us.â€
The president moved to require all executive branch employees, federal contractors and millions of health care workers to be vaccinated. Workers at private businesses with 100 or more employees will have to either get vaccinated or take a weekly Covid test. Any business covered by the order must offer its employees paid time off to get their shots or recover from any side effects.
As incursions on bodily autonomy go, this is pretty mild stuff. No one, the Times columnist David Brooks wrote in May, is being asked to storm the beaches of Iwo Jima.
but a group of Republican governors are challenging the diktat in court:
A number of republican governors, who have long fought mask mandates and other safety regulations intended to stop the spread of the deadly virus, immediately argued that this rule change infringed on their personal freedom and was unconstitutional. The change was an attack on private businesses and states rights, they claimed.
“Biden’s vaccine mandate is an assault on private businesses,†tweeted Texas Governor Greg Abbott. “I issued an Executive Order protecting Texans’ right to choose whether they get the COVID vaccine & added it to the special session agenda. Texas is already working to halt this power grab.†Last week Abbott enacted legislation that would prevent the majority of women in Texas from choosing whether or not to receive an abortion, even in cases of rape and incest.
Texas Attorney General Ken Paxton also questioned Biden’s ability to issue the mandates. “I don’t believe he has the authority to just dictate again from the presidency that every worker in America that works for a large company or a small company has to get a vaccine,†he said on a radio program hosted by former President Donald Trump advisor Steve Bannon. “That is outside the role of the president to dictate.â€
Governor Kristi Noem of South Dakota wrote on Twitter that she would see Biden “in court,†and Governor Henry McMaster of South Carolina said in a statement that “Biden and the radical Democrats (have) thumbed their noses at the Constitution.†Governor Mark Gordon of Wyoming also said he was preparing his state’s attorney general to take action.
while in an op-ed in the New York Times Robbie Soaves, editor of the libertarian site, Reason.com warns:
The president’s plan is certainly well intentioned. The vaccines are the only tried-and-true strategy for defeating Covid; government officials should both encourage vaccination and make it easier to get vaccinated. Health officials must continue selling people on the vaccines by emphasizing the considerable upside: Vaccination decreases transmission of the virus and turns hospitalization and death into very unlikely outcomes. It provides such robust protection that 99 percent of coronavirus fatalities in the United States now occur in the unvaccinated population. Vaccination works, and it’s the right option for a vast majority of Americans.
But forcing vaccines on a minority contingent of unwilling people is a huge error that risks shredding the social fabric of a country already being pulled apart by political tribalism.
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.
For my part while I have no problem with vaccine mandates in the abstract, think that at this point there is ample evidence for at least the short term safety and effectiveness of the vaccines, and believe that more state and local governments should be mandating vaccinations, I’m a ways and means kind of guy and doubt that the federal government has this power. Before you point out the venerable court cases asserting that government does, indeed, have that power, find one that ruled that the federal government has that power. If it does have the power, it can only be wielded by act of Congress, and the president does not have the authority to make such mandates on his own and the Congress does not have the authority to delegate that power to the president or an executive branch agency. I also suspect this is another of the myriad well-intentioned decrees which there is no actual intention of enforcing which I think weakens the rule of law in general.
It does raise an interesting question, however. At this point I know of no state which has an unconditional COVID-19 vaccine mandates or even a universal mandate conditioned on the absence of religious objections. Illinois doesn’t have one. Why not? I think it’s because the governors fear political repercussions.
There is one thing that President Biden has not done, is certainly within the federal government’s authority, and in which I think that President Trump was remiss in the early days of the pandemic: curbing and controlling travel between the states. My explanation for this, is that fear of political blowback overrules all other considerations.