A Constitutional Crisis If You Will Keep It: Vax Mandates

November 16, 2021

Tags: 4A, 5A, COVID, equal protection, mandate, public health
Posted in: Biden, Democracy

Sometimes a thing can be two things at once, one good and one bad. That requires a choice. In a free society that choice is usually best made by the individual affected. If not, then by an open, democratic process. That is not what’s happening with the vax mandate and why the cure may be worse than the disease. Literally and metaphorically.

It is best to be clear: Like many people, I am, by my choice, thrice vaccinated. I understand the Covid vaccine prevents me from getting sick. I am not anti-science. But vax mandates are an unhealthy thing for our democracy and represent a willful effort by government to exert additional control over an already cowed population. There is a direct line between the Patriot Act, mass surveillance, and vax mandates that allows claims it is all for our own good when it is more broadly for our own bad. We are going to have to chose. This is about politics, not medicine anymore.

Whatever you call a country where a central authority makes unilateral decisions which control its peoples’ lives at a granular level, that is now what America has become. In escalation of that new reality, the Biden administration announced a mandate requiring U.S. employers with 100 or more workers to ensure employees are vaccinated for Covid or tested weekly, likely at their own expense. A separate mandate requires employers participating in Medicare or Medicaid to have a fully vaccinated workforce, with no testing alternative.

The first rule alone covers 84 million U.S. workers, or two-thirds of the U.S. workforce. People who do not comply will lose their jobs. Workers who test positive for Covid will be removed from the workplace.

It is critical to understand that these national-level mandates affecting two-thirds of workers (for now; expansion is likely) have been imposed; there was no legislation, no vote, no public debate, no public record of who supports and who opposes them. It all begs the question of if the threat is so obvious, why has this needed to be so coercive and sneaky? The Biden administration disingenuously created the mandate through the back door of the Occupational Safety and Health Administration (OSHA), a sub-office inside the Department of Labor otherwise created to ensure workplace safety. The mandate places an unvaccinated worker (not a diseased worker) in the same category as frayed electrical cords and wet floors, a workplace hazard. OSHA, under threats of penalty, outsources enforcement (i.e., firing the unvaxxed worker) to the conscripted employer. Fines are up to $136,532 for employers who willfully violate standards. OSHA will carry out inspections and a whistleblower hotline is available to rat out your boss.

The Biden administration is also requiring Americans abroad seeking to return to the U.S. to either be vaccinated or test negative, the first time in history something other than citizenship has been a criteria for a citizen’s reentry. The decision to allow an American Citizen to return to his own country, a right seen as guaranteed by the Constitution, has been outsourced to a local airline employee at a foreign airport in contrivance of any due process. That last bit is what’s new; even during the Ebola outbreak screening was done by American government officials at American airports. Not any more. By outsourcing enforcement to an airline clerk in Paris, as with outsourcing censorship to Twitter, Biden disposes of Constitutional 5A protections.

All of this has been justified as a legitimate response to an emergency, albeit an “emergency” now heading into its second year and one which has been essentially put to rest in many other democracies, such as in Scandinavia, with much lower social costs. The problem is that what may seem like a reasonable step in today’s emergency will have a hangover effect when invoked as precedent in less dire circumstances for even more authoritarian rules. The impulse to map restrictive rules on larger and larger populations is also to be expected. In simpler terms, power seized by governments rarely is relinquished, even long after the urgency has passed. That’s why you are still taking your shoes off at the airport. It’s why after “two weeks to flatten the curve” we are talking about vax mandates and the government controlling who can work, travel, go to school. Like terrorism, who can ever say when Covid has gone away forever?

There is some hope already visible. In his dissent on an earlier case in which the Court upheld a state-level healthcare worker vax mandate, Justice Neil Gorsuch expressed cynicism about what he views as the government’s protracted suspension of liberties due to the pandemic. “I accept that what we said 11 months ago remains true today — that [s]temming the spread of COVID–19 qualifies as ‘a compelling interest.’ At the same time, I would acknowledge that this interest cannot qualify as such forever.”

The government’s history of such liberties taken with our liberty is poor. Think back to the powers taken by post-9/11 presidents to address that emergency. The result was ongoing mass surveillance of Americans in America (4A), a global kidnapping and torture program (all laws of decency and human dignity. 5A as Guantanamo is still open to house American permanent residents,) near-endless wars started without Congressional approval (War Powers Act, Article I, Section 8) and drone killings of American citizens abroad (5A.)

If it was still about medicine we would be testing workers and travelers for chlamydia and tuberculosis, deadly and infectious diseases, and making a yearly flu shot mandatory (38 million people in America got the flu last year.) If we shared so much concern for our fellow citizens that we force them to vax, it is important to ask why we don’t show similar concern for their general lack of access to medical care for other life threatening things. Why only Covid? Why not malnutrition, an underlying cause of a third of children’s deaths, 2.6 million every year?

Biden’s assertion of control over who can work and who cannot is clearly overreach when well-more than half of all Americans are already vaccinated. It is also unconstitutional. Cases already filed will inevitably reach the Supreme Court. The cases will likely hang on the hook of states’ rights, or the 14A equal protections clause preventing discrimination based on health status, for example, workers with AIDS. Another hook might be the government violating the 1A by taking it upon itself to adjudicate which religious objections qualify and which it claims are bogus.

But the cases filed will not be at their heart about Covid, or medicine at all, but about our democracy. Any notion that public health demands the government take for itself the power to dictate who can work, or which Americans have the right of return, misses the point. Covid should not be the driving force of life in America. A truly healthy society is one where freedom is its core value, not fear.

Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.