Biden mandates 100m more Americans get vaccinated

Biden requires large business, federal contractors, and millions of health care workers be vaccinated.

In a sweeping series of new executive orders, President Biden just mandated that another 100 million Americans get vaccinated, or be tested every week until they do. And the Republicans are hopping mad.

In a nutshell, Biden is ordering that:

1. All 2.1 million federal employees be vaccinated, with few exceptions;

2. 300,000 educators in the federal Head Start program be vaccinated;

3. 17 million health care workers who work for institutions that accept Medicare and Medicaid be vaccinated;

4. Federal contractors require their employees be vaccinated; and

5. Any American business with 100 or more employees require their employees be vaccinated or institute weekly testing of unvaccinated employees.

Under Biden’s new policy, workers must be given paid time-off to get vaccinated, and to recover from any vaccine side effects.

If businesses don’t comply, the Department of Labor’s Occupational Safety and Health Administration (OSHA) could fine businesses up to $14,000 per individual violation (meaning, per employee).

Acyn @Acyn

Biden: Some of the biggest companies are already requiring this… even Fox News

It’s a heck of a mandate, though the weekly testing option is potentially a big loophole for holdouts. And while testing will help take them out of the workplace once their illness is confirmed, it doesn’t stop them from getting infected, or from spreading Covid in the week before their positive test.

Now, Republicans governors have already said they’ll sue to block this, and they surely will. But will they succeed? This is a multi-part proposal. I would think that Biden can mandate the provisions regarding federal employees — they actually work for him -- and federal contractors (because the government has forced lots of employment rules on contractors). The big question is the legality of using work safety rules to require that employers require vaccinations (or tests).

Folks have pointed me to one Supreme Court decision that seems relevant: Jacobson v. Massachusetts. In a nutshell, in the early 1900s, Massachusetts was one of 11 states that had laws mandating smallpox vaccinations. One gentleman, Mr. Jacobson, objected, and took his case all the way to the Supreme Court, where he lost 7 to 2.

In a nutshell, the court ruled that the government — at least a state government — could impose compulsory vaccines when public safety demanded it, that your individual liberty does not give you the right to injure others, and that just because you say a vaccine doesn’t work doesn’t make it true.

Wikipedia does a great summary of the decision — here are a few excerpts:

Justice John Marshall Harlan delivered the decision for a 7–2 majority that the Massachusetts law did not violate the Fourteenth Amendment. The Court held that "in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand" and that "[r]eal liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others."

Furthermore, the Court held that mandatory vaccinations are neither arbitrary nor oppressive so long as they do not "go so far beyond what was reasonably required for the safety of the public". In Massachusetts, with smallpox being "prevalent and increasing in Cambridge", the regulation in question was "necessary in order to protect the public health and secure the public safety". The Court noted that Jacobson had offered proof that there were many in the medical community who believed that the smallpox vaccine would not stop the spread of the disease and, in fact, may cause other diseases of the body. However, the opinions offered by Jacobson were "more formidable by their number than by their inherent value" and "[w]hat everybody knows, ... [the] opposite theory accords with the common belief and is maintained by high medical authority." Therefore, it was left to the legislature, not the courts, to determine which of the "two modes was likely to be the most effective for the protection of the public against disease". No one could "confidently assert that the means prescribed by the State to that end has no real or substantial relation to the protection of the public health and the public safety".

Finally, the Court acknowledged that, in "extreme cases", for certain individuals "in a particular condition of ... health", the requirement of vaccination would be "cruel and inhuman[e]", in which case, courts would be empowered to interfere in order to "prevent wrong and oppression".[2] However, the statute in question was not "intended to be applied to such a case" and Jacobson "did not offer to prove that, by reason of his then condition, he was, in fact, not a fit subject of vaccination".

I think Biden’s move today is great. Sure, it will galvanize Republicans, but that happens when Biden breathes. And far more Americans agree with Democrats, when it comes to Covid, than with Republicans. That does not, however, mean that we per se win this. I’ve always felt that Republicans are, as a rule, better at messaging than Democrats. So, even when the public agrees with us, we can lose issues if we lose the messaging war. After all, the main provisions of Obamacare had a 70% approval rating, but Republicans were still able to demonize the Affordable Care Act for years, until it finally became popular again some eight years after it became law.

That’s to say that we shouldn’t assume victory simply because the public is on our side for the moment.

As an aside, Texas Republican Congressman Dan Crenshaw joined the GOP governors in expressing outrage at Biden’s new mandates. Crenshaw’s was particularly bizarre, I just had to share:

I did a TikTok video in response, that you can watch here, but in a nutshell, note how it’s anathema to Crenshaw — he can’t even conceive of the notion — that Democrats might want to get Black voters vaccinated too. That Democrats might actually WANT Biden’s executive order to push minorities to get vaccinated. The Republicans have been working so long against their own voters’ interests, that it’s simply foreign to them that Democrats might actually want to help our own.