Rights and Wrongs of Biden's New Vaccination Mandate Policies

Some parts are both good policy and legally unproblematic. Others - particularly the mandate imposed on private employers - are legally dubious and would set a dangerous precedent if upheld by courts.


President Joe Biden.

Yesterday, President Biden announced  new policies mandating vaccination for up to 100 million American workers of various types. Some parts of the policy are entirely defensible, and legally unproblematic. But others—most notably the imposition of a vaccination/testing mandate on all private employers with 100 or more workers—are legally dubious and would set a dangerous precedent, if upheld. I am strongly supportive of vaccination, share much of Biden's frustration with anti-vaxxers, and even support vaccination mandates in some situations. But we must remain wary of executive power grabs, even  (perhaps especially!) in cases where we might like aspects of the policy in question.

The most defensible part of Biden's program is the vaccination mandate for federal employees. Acting as an employer, the federal government (like other employers) can routinely impose all sorts of conditions that would be illegal if imposed on the general public. Indeed, many requirements routinely imposed on employees are far more onerous than vaccination, including even such things as having to show up to work every day! The latter is a far more significant restriction on liberty than getting vaccinated; it takes up many hours of your time and effort every day, while getting the shot takes only a short time, and afterwards you can soon get on with your life, as normal. If imposed on the general public, a work requirement would violate the Thirteenth Amendment's prohibition of "slavery" and "involuntary servitude." As a condition of holding a federal job, it is perfectly constitutional.

With the possible exception of employees who have contracts that somehow preclude vaccination (if any such exist), this part of Biden's policy is legally unproblematic. It likely makes good policy sense, as well.

The associated mandate imposed on employees of federal contractors is, perhaps, only slightly more contentious. It depends on the extent of the executive's statutory authority to impose conditions on federal contractors that aren't directly related to carrying out their jobs. I will leave this one to people who know more about the law of federal contracts than I do. But I will note there is a long history of imposing a variety of conditions on such contractors, some of which are not directly related to the effective performance of their duties.

Things get more dicey when we consider the vaccination mandate for employees of hospitals and other health care facilities receiving federal funding. As a policy matter, this mandate makes excellent sense, as health care workers often have to interact closely with patients who are unusually vulnerable to Covid, and those patients sometimes have little choice but to accept the ministrations of the specific doctors and nurses they encounter. Legally, however, it is not entirely clear whether the statutes in question authorize the imposition of vaccination funding.

As co-blogger Josh Blackman points out, such clarity is especially important when we consider the case of state-run medical facilities. There, Supreme Court precedent requires that spending conditions be "unambiguously" stated in the authorizing statute. The Trump administration repeatedly ran afoul of this requirement in its efforts to pull federal funds from sanctuary cities. Whether Biden runs into the same problem here, remains to be seen. Before offering a considered judgment, I would like to know more about what statutes the administration plans to cite as authorization for this particular mandate. Unlike in the case of Trump's assault on sanctuary jurisdictions, I have considerable sympathy for the policy objective in this case. But my sympathy isn't enough to make it legal.

Unlike Josh, I am skeptical that state governments will be able to successfully challenge the health care facility spending condition on the grounds that it is "coercive." In NFIB v. Sebelius, which Josh cites, the Court invalidated as "coercive" a provision of the Affordable Care Act that threatened to pull all Medicaid funding from states that refused to comply—an amount equivalent to some 10-20% of most states' total budget. If I understand the Biden condition correctly, all it would do is pull federal funding from specific health care facilities that refuse to impose vaccination requirements on their employees. This is unlikely to punch a major hole in any state's overall Medicaid funding (most of which is not tied to specific health care facilities), much less in the state's budget as a whole. Still, this is another issue that probably requires closer consideration when and if a specific case arises.

The really problematic element of Biden's plan is the requirement that all employers with 100 or more workers impose a requirement of vaccination or regular Covid testing on their entire workforce. This affects some 80 million workers (though a large percentage are likely vaccinated already), and the legal authority for it is dubious, at best.

The Administration plans to impose this requirement by using the Occupational Safety and Health Administration's (OSHA) power, under the 1970 OSHA Act, to impose an "Emergency Test Standard" in cases where the agency determines "that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards."

The ETS provision allows OSHA to impose regulations without going through the normal "notice and comment" process, and other procedural requirements. For that reason, as Walter Olson of the Cato Institute points out, courts have subjected previous ETS policies to nondeferential judicial review, and have often struck them down. ETS has only been used nine times before, and in five of those instances (of the six that got litigated at all), courts have struck down at least part of the resulting policy. None of the previous uses of ETS were anywhere near as sweeping as this one.

It's not hard to see how the present ETS may be vulnerable. A virus, like that at the root of the present pandemic, arguably doesn't qualify as a "substance or agent." These terms generally refer to chemicals, liquids or man-made dangers, not living things.

Perhaps it counts as a "new hazard." But it's not clear that, in this context, the term "hazard" includes all dangers of any kind, or is limited by the previously listed terms ("substances or agents").  Perhaps a "new hazard" is simply a dangerous substance or agent that is novel, as opposed to one that, as the statute puts it, has already been "determined to be toxic or physically harmful." In addition, 19 months into the pandemic, it's not easy to claim that Covid is a "new" hazard, at all. By now, it has been well known for quite some time.

Finally, does Covid really pose a "grave danger" to employees when the vast majority of them can easily minimize it by getting vaccinated voluntarily, thereby almost completely eliminating the risk of serious illness and death? If "grave danger" exists even in cases where it is easily avoidable, OSHA would have near-boundless authority to issue ETS regulations on almost any workplace practice.

Virtually any workplace activity poses grave dangers to at least some people, if none of the latter can be expected to take even minimal precautions on their own. For example, parking a car in the employee parking lot creates a grave danger for people who refuse to move out of the way when they see a car coming (even if the driver is driving carefully). Along the same lines, it is worth noting that the vaccination/testing mandate applies even to employees who work at home, despite the fact that the latter pose little or no threat to other workers.

The above discussion of the ETS statute may seem like petty legalistic carping. Hairsplitting word games at a time when lives are at stake may seem like exactly the kind of thing that (justifiably) gives lawyers a bad name.

But if the administration prevails on this issue, it would set a dangerous precedent, and undermine the constitutional separation of powers. In order to uphold this ETS requirement, courts would have to rule that the statute authorizes OSHA to issue emergency regulations for dangers that 1) are not limited to chemical "substances or agents," 2) are not really all that "new" and 3) can easily be greatly mitigated by the  people the agency seeks to protect.

In combination, these conclusions would allow OSHA to restrict or ban almost any workplace practice. And they could do it without having to go through the notice and comment process, or other procedural constraints that normally apply to major regulations.

If you think the  Biden administration can be trusted to wield such vast power responsibly, consider whether you will have similar faith in the next Republican administration. Think of what Donald Trump or Ron DeSantis might do with such a vast power.

Such massive delegation of power by Congress would also make the statute constitutionally suspect under the nondelegation doctrine, which was a key issue in the recent litigation over the CDC eviction moratorium. There must be at least some limits on the amount of lawmaking power Congress delegates to the executive. A power to suppress almost any workplace activity of any kind likely runs afoul of that.

Ultimately, the Supreme Court ruled against the moratorium primarily because it ran afoul of the rule that "[w]e expect Congress to speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'" The power OSHA claims here is comparably "vast," and congressional authorization far from clear. For that reason, there is a good chance that courts will ultimately rule against the administration in this case, as well.

The administration's goal of getting as many people vaccinated as possible is a laudable one, that I wholeheartedly support. But it should be pursued by means that avoid executive power grabs likely to set dangerous precedents.

UPDATE: I should, perhaps, add that it is unlikely that any of these mandates can be successfully challenged on individual rights grounds, as opposed to issues of federalism and separation of powers. The Supreme Court's 1905 ruling in Jacobson v. Massachusetts likely precludes such challenges, except perhaps in a few extreme cases (e.g.—if an employee can show getting vaccinated would create severe health risks for her, but the administration still tries to force vaccination). Perhaps some employees might be able to secure religious exemptions to the mandate. But such cases are likely to be rare.

UPDATE 2: In the original version of this post, I wrote that courts had struck down at least part of the challenged policy in all six instances where OSHA ETS regulations were litigated in court. In reality, it was "only" five of the the six. I apologize for the error, which has now been corrected.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. An issue that concerns me, which I haven’t seen the legal types talking about, (Perhaps due to lack of training in biology?) is this:

    The CDC estimates that about a third of the population have contracted Covid since the beginning of this pandemic. Something like 40M have been confirmed by tests. And having contracted Covid is approximately as effective as the vaccines at producing immunity!

    That being the case, how can the government justify any sort of vaccine mandate that doesn’t make an exception for people who have already had Covid?

    1. If they can have a cheap test for Covid why can’t they have a cheap test just for Covid antibodies? So antibodies are the most important thing and not the vaccine.

      1. The number of antibodies in one’s bloodstream generally drop off over time. We retain immune memory cells that record how to make antibodies, but those take a few days to detect an infection and start producing antibodies — long enough for most respiratory infections to take root. has more information than most of us probably want about predicted efficacy of COVID-19 immunity/resistance over time as a function of original efficacy. You poke at a very important consideration: What is OSHA going to do as vaccine-based immunity fades over time? Will this mandate expand to require booster shots? Is there actual science driving this policy, or is it just scientism?

        1. OK, what is ‘just scientism’ as opposed to ‘actual science?’

          1. Scientism is dressing up personal policy preferences in a lab coat and pretending one’s wants have terminal degrees.

            1. That’s a totally useful definition. It’s like ‘judicial activism.’

        2. For QA, scientism is a convenient slogan “follow the science” when a person in a white coat is trotted out and mouths the political decree

          1. If it were trotting out a person in a white coat that would be one thing, but if there’s a general consensus of relevant experts that’s another.

            1. But there is very far from a consensus once you get outside the bounds of people financially feeding at the government trough.

              1. Ok, so now you’re crossing into the silly conspiracy area. ‘Sure, experts disagree with me, but they are all in collusion because they are bought by the government.’

                1. It’s not really a conspiracy to know that government, any government, is going to trot out “experts” who back it’s chosen narrative. There’s nothing new under the sun there.

                  1. It’s a conspiracy to think, in a liberal democracy, that all those connected to the government are ‘in on it.’ Especially given these experts tend to go back and forth from government to the private sector, and very especially when 1. private experts agree with them and 2. government experts in many other countries agree.

                    1. It’s a conspiracy to think, in a liberal democracy, that all those connected to the government are ‘in on it.’

                      And it’s sheer doe-eyed naivete to believe that this particular group of experts would bite the hand that feeds them and cut off that rich, warm stream of guv’ment colostrum.

                    2. Brian, accusing an entire group of people of fraud based on some nefarious motive like retaining government employment is the essence of conspiracy theories. If you are doing the first, you are engaging in the second.

                      When there is an overwhelming consensus among thousands of private individuals (regardless of who employs them) it’s not reasonable or rational to believe that they are all corrupt over believing they are all convinced.

                2. What a bullshit answer. You obviously read little of the literature published by researchers around the world. You comment about conspiracy theories is an insult to me personally and to scientists outside the confines of us government control. When you have more manners and more good sense, i’ll unmute you

                3. “Ok, so now you’re crossing into the silly conspiracy area. ‘Sure, experts disagree with me, but they are all in collusion because they are bought by the government.’”

                  Is it a silly conspiracy theory to suggest that experts employed by, say, oil companies or pharma companies are influenced by the interests of their employers, or is that just experts employed by the government?

                  1. TwelveInch, what makes it a conspiracy theory is positing that the government has an interest in biased research, instead of forthright research, and that researchers with a professional reputation to protect will sell out to serve the government bias. That is in no way comparable to the case of researchers serving the self-interest of profit-making companies.

                    In the latter case, entire careers have been built on lying to protect the interests of one business on one issue. For a researcher serving that issue, there is no downside to getting it wrong, so long as the client is satisfied.

                    I get that right wingers would like to insist the same is true for government. Problem is, government does not have that kind of enduring self-interest. It does not make profits, and it can suffer political losses for being wrong on misguided policy. It takes a conspiracy theory to suppose otherwise.

                    1. “researchers serving the self-interest of profit-making companies. ”
                      You comment is just nonsense. I have worked for decades with hundreds of scientists at government labs. They are as honorable as those working for big Pharma or the oil companies. They definitely feel the pressure of conforming with declared government policy. Fortunately that does not intrude into most areas of research.
                      Next time opine about something that you know first hand.

                    2. “positing that the government has an interest in biased research”. Wait, you think that politicians AREN’T interested in biased research? Seriously?

                    3. “It takes a conspiracy theory to suppose otherwise.”
                      No, it only take bureaucratic inertia and ladder climbing by civil servants.Your resorting to the “conspiracy theory ” taunt casts grave doubt on every thing that you claim

              2. And further, if you’re talking about the Maccabi study, do you want to argue they don’t have a place at the government trough?

                1. It is clear. You just follow the Party line. Pathetic

            2. A “general consensus of relevant experts” is what is commonly called a “conspiracy” of experts by the “COVID is a hoax” crowd.

              1. A general consensus of the experts in the USSR held that Darwinian evolution was a crock, and favored Lysenkoism. Politics tends to corrupt everything it touches, science is no exception.

                1. I will give Russia credit for using those tactics against the EU and America with respect to fracking…so at least that disinformation campaign made Russia stronger.

                  The disinformation campaigns that America has waged have made America weaker especially with respect to the Global War on Terror and the Orwellian propaganda promoted by the Bush administration and Fox News these past 20 years. And the Lost Cause Orwellian propaganda promoted by the American South made the South weaker along with America weaker.

                2. Yeah dude, we’re not in the USSR. Try again.

                  1. Meh. Government is government. The professed ideologies tactics, and propaganda may change but in the end they all use the same tactics and employ the same strategies to hold sway over their respective peoples.

                    1. Yeah, that’s crazy. I may not like the local fundie Church, but it ain’t the Taliban.

              2. The fact is there there is no consensus of relevant experts who are outside the reach of being fired by a Fed SES

                1. It is interesting that when Leftists find even the slightest of monetary connection, they rant that the person’s opinion is just purchased. But doubt a US government employee? Then you are a conspiracy theorist.
                  What intellectual dishonesty!

                  1. Doubting the US Government scientist isn’t the argument, nor the logic. Doubting the overwhelming consensus of scientists inside and outside the government, throughout the country, all with different employers, beliefs, and interests is the argument.

                    That and the intellectual dishonesty of pretending only government scientists are making the argument.

                    1. Nelson,
                      But the consensus that you are trying to allude to just is not there. If you regularly read the relevant literature you’d learn that.

                    2. Actually, it depends on what consensus you are referring to. The consensus is clear that over 95% of severe symptoms and death are in the unvaccinated. And it is backed up, every day, on the ground.

                      I’m torn about the doctors and nurses who are advocating for the unvaccinated to go to the back of the triage line when they come in needing an ICU bed. The argument is if the bed can go to someone who hasn’t actively avoided helping themselves, that should matter. If the hospitals would rather keep a bed or two open on a weekend night for the inevitable innocent victim of a drunk driver over someone who chose to risk dying through their choices, should that factor into the decision?

                      In general, the toll that this pandemic is taking on health care workers, especially nurses, is staggering. I have 3 different friends who are nurses in three different regions (western PA, Tennessee, and Florida) who are done. They have said, “no ICU or I’m out of here”. And they aren’t alone. It’s becoming increasingly common, especially in high-positivity areas like Tennessee and Florida. And hospitals have no choice but agree, since the choice between having a shortage of nurses who will work the ICU (which is much different than an ICU nurse) and having a hospital-wide nurse shortage is a no-brainer.

                      There was already a nursing shortage before the pandemic, but asking someone to work double or triple shifts caring for people who haven’t lifted a finger to help themselves?

                      I understand the sentiment. I’m at the point where I figure if someone is unvaccinated and dies, I struggle to find sympathy for them Anyone who sees that 97% of Covid deaths are unvaccinated and takes the chance is making an informed decision. And I don’t have to go through the emotional wringer every time I lose a patient, like medical professionals do.

                      Never mind anyone who buys into the latest version of bullshit coming from the “anything but vaccine” crowd. HQC, Ivermectin, being young and healthy will always protect you, patting your belly and turning around three times, or whatever the latest questionable treatment? I find it impossible to summon any sympathy for those idiots.

                2. Yes, there is. Doctors on the ground reporting data points, immunology researchers for think tanks, private companies, colleges and universities … basically everybody everywhere along the research arc agrees. Saying it’s only government-employed scientists when it clearly is not exposes it as a conspiracy theory.

                  1. ” basically everybody everywhere along the research arc agrees.”
                    Agrees with what?
                    You are, at best, misrepresenting the literature.
                    Those data points are far from consistent. Hypotheses and explanations are far from consistent.
                    The evolution of this virus is a complex (not complicated) set of phenomena, that are emergent and not predictable.

                    Let’s take one example. The CDC still claims that obesity is an important comorbidity. Yet an examination of the correlation of COVID morbidity with obesity or BMI based on statistic including over 5.5 billion people shows a correlation statistically consistent with zero. Where is the CDC’s retraction of its early guesses?

                  2. Nelson,
                    I agree about your consensus about “over 95% of severe symptoms and death.”

                    There should be no doubt that “advocating for the unvaccinated to go to the back of the triage line when they come in needing an ICU bed” is in gross conflict with medical ethics, when almost 30% of delta infections are in vaccinated persons. (a statistic promulgated this week by the CA department of public health).

                    “the toll that this pandemic is taking on health care workers, especially nurses, is staggering” No argument there.

                    “Never mind anyone who buys into the latest version of bullshit coming from the “anything but vaccine” crowd.” My quibble with that statement is that the CDC has been singularly silent about any search for effective treatments.

                    However, I do advocate vaccination and taking one’s chances with side effects. If side effects were severe the first time around, I’d think twice about a booster if offered.

                    1. 30 of Delta *infections* are among the vaccinated. 30% of *hospitalizations* and 30% of *deaths* are not. This is one of the more annoying sleight-of-hands that vaccine skeptics use. They intentionally try to make it look like Delta is as dangerous to the vaccinated as the unvaccinated, and that’s just not true. Deaths are almost exclusively among the unvaccinated and the vaccine is incredibly safe. Bottom line, the vaccine won’t kill you, not getting the vaccine could. Is it a surprise that medical workers have lost sympathy for the unvaccinated? Is it a surprise that they resent the innocent people who need an ICU bed being turned away because they are filled by unvaccinated people with Covid?

                      Even if you take it for what it is (infections among the vaccinated/unvaccinated at 30%/70%), the larger pool of people (vaccinated) are contributing a significantly lower amount to the infection rate. More than twice as many cases come from the smaller population. So what does that tell you?

                      Granted, I’m a little more irritated than normal, since I heard from my friends in Tennessee and Florida in the last week and a half. They both are working ICU (one is normally an ICU nurse and one isn’t), both are watching their co-workers refuse ICU, both are considering it themselves, and both are feeling guilty because of it. Granted they are just two data points, but it isn’t an uncommon story. Hearing them trying to deal with their guilt, anger, and emotional exhaustion brought to them by unvaccinated Covid patients is heartbreaking and infuriating. And they went to college with me, so they are both about 50. It’s not like this is their first experience.

                3. The fact is there there is no consensus of relevant experts who are outside the reach of being fired by a Fed SES

                  No. You cannot terminate a grant without justification, even if you are an SES.


                  1. True enough, but you sure as hell can kiss the next grant goodbye.

                  2. S_0,
                    You re not so naive as to believe that government don’t put their thumbs on the scales.
                    The grossest instance of which I have direct knowledge is of a single comment to a reporter about an issue of science that cost his lab $10M in less than one week.

                    1. Don Nico, furnish the particulars and spell the names right. Publishing vague hints about wrongdoing does not convey information. It does incite ungrounded speculation.

        3. “long enough for most respiratory infections to take root.”

          And then typically get stomped before they get bad.

          1. Sure. But the person might be contagious until it is fully stomped out.

            1. Oh, yeah. But “sterilizing immunity” has always been a temporary thing, anyway, which goes away after a while. It’s never been the measure of whether a vaccine worked, before.

              Sterilizing immunity is the holy grail of immunology, but when you just need a drink of water, you don’t insist it has to be from the holy grail.

    2. Apparently an antibody test requires a pin prick…so might as well just get the vaccine. But I do think someone that gets a test that actually measures antibody levels and they are at a certain level then that person should be exempt from the vaccine mandate…but the test is intrusive because it involves taking blood.

      1. Apples and oranges. Trust me, I’m a Type 1 diabetic, so needles and pin pricks are a daily thing for me. One, the prick, involves removing something (blood) from the body. The other, the injection, involves introducing something into the body that wasn’t there before.

        1. I think it’s nuts that proof of antibody levels isn’t sufficient to get out of the vaccine…I’m just saying the logistics aren’t quite as easy upon closer examination.

          1. SC,
            You’re correct that the logistics are not so easy. Seeing no antibodies does NOT mean that you do not have substantial immunity. But when one measures an antibody level equal to that of a vaccinated person, how is that not sufficient proof for CDC?
            The answer has nothing to do with science.

      2. A passive test and an active vaccine are very different. Don’t conflate them.

        If a person who has had Covid wants to pay with their own money to test their antibody levels regularly in order to be exempted from a vaccine requirement, I don’t see why that’s a bad idea. As long as there are repercussions and penalties for fraud or lying, that should work.

        1. Umm, no. If society is going to impose the costs on people, society should bear those costs.

          1. An argument for government-sponsored health care? Interesting twist.

            If you want an exemption to a general requirement, why should someone else pick up the tab?

            1. When the “general requirement” is a major intrusion into individual liberty, then society should pick up the tab.

              What if you imposed a “general requirement” to see three psychologists over a 7 day period to get an abortion? Are you okay with making the woman pay for them?

              1. Hey, you make your choices and live with the consequences. That’s what self-reliance us all about, right? Unless you think that someone else should pay for your lifestyle choices, in which case the trans community thanks you for your support.

              2. Oh, and the hypothetical abortion question? Since there is no connection between wanting an abortion and psychological issues I’m missing why it is your parallel.

                There is a connection between severe symptoms and death and being unvaccinated. If I ran a business, I would rather have an employee who was more likely to be available to work.

        2. Nelson,
          It is not a bad idea.
          BUT the CDC instructs not to accept the serology test as a determinant.
          It is true that a negative serology test does NOT mean the absence of immunity. However, why disregard a measure of a antibody level equal or greater than the levels seen in vaccinated persons

    3. According to the Israeli study, having previously contracted Covid is very much not “as effective as the vaccine in producing immunity”. It is much more effective.

      1. Your report is accurate and is ignored by Mr Biden and the CDC.
        Remember that CDC will not accept a serology test as a measure of whether vaccination is needed or advised.

        For QA, the CDC’s position is “scientism.”

      2. Multi-study support is important before drawing such broad conclusions, so this seems like a reason to question the idea of equal immunity but not reject it. Not yet.

        1. Nelson,
          Lee’s comment has been a finding of several research papers in the medical literature for at least 6 months

      3. Of course. The vaccines, while effective, are not really “vaccines” at all. They’re more prophylactic treatments.

        1. Others have made the point previously, from both sides of the vaccine debate: yes, it is a vaccine. By the definition generally accepted in the medical community, it is a vaccine.

          1. A vaccine, by its generally accepted definition, uses the virus, either live or inactive, to create immunity. This is not a vaccine.

            1. It is a vaccine but present usage. Forget your definitions from 40 years ago

    4. You’ve been provided with this answer before:

      “Yes, you should be vaccinated regardless of whether you already had COVID-19 because:

      Research has not yet shown how long you are protected from getting COVID-19 again after you recover from COVID-19.
      Vaccination helps protect you even if you’ve already had COVID-19.

      Evidence is emerging that people get better protection by being fully vaccinated compared with having had COVID-19. One study showed that unvaccinated people who already had COVID-19 are more than 2 times as likely than fully vaccinated people to get COVID-19 again.”

      Now, you can say the CDC is wrong. But the answer to that is plain: governments can exercise whatever powers they may have relying quite reasonably on the idea that the CDC experts are more likely correct than Brett Bellmore.

      1. QA,
        You are just mouthing the official CDC position, when the Irsaeli study, the largest that has been conducted to date says otherwise.
        That is “scientism” not medical science.

        1. Wouldn’t taking one study to be Gospel be exactly what you’re criticizing?

          1. No. One is an actual study, the other is simple a pronouncement from On High. It’s not enough that the person making the a statement have a bunch of letters after their name. I need to see the backing data and studies, along with the sample size and methodology to believe anything anyone who claims “science” says before I believe or trust them.

            Take no one at their word, no matter how many credentials they wave around.

            1. Nope, as it says in the excerpt (and you can click on it to a linked study) “One study showed that unvaccinated people who already had COVID-19 are more than 2 times as likely than fully vaccinated people to get COVID-19 again”.

              Your sloppiness on this basic point suggests volumes. ‘Science’ defender, indeed.

              1. I’ve seen it. The methodology seriously troubles me. There have never been a virus before that once one recovers, that there isn’t a strong level of natural immunity, so stating this this is somehow different is an extraordinary claim. Extraordinary claims require extraordinary evidence. If an extraordinary claim is made that somehow there is no or little naturally acquired immunity from COVID recovery that violates all known medical science, I need to see the exact specific mechanism as to how that works.

              2. Considering the sample size was only 246 patients, the data is statistically meaningless. To be statistically significant a sample of at least 1500 is required. This is Stats 101.

                1. Indeed. Ten consider the Israeli study with over 50% of the country’s population that reaches a much different conclusion.
                  QA, just wants to swallow the Commissariat’s line.

                  1. Don Nico, if you keep tossing around that, “Commissariat,” stuff, don’t complain when you get labeled a conspiracy theorist.

                    1. Haha,
                      I meant Old White Joe.

                    2. By the way, I used that word ONCE. It is not tossed around it is used once.
                      And it is accurate when POTUS overreaches his legal authority, when the FDA Chair and deputy “happen to resign” on the same day with the Sec of HHS saying nothing.
                      You must have been a shit poor editor and publisher if you get your hackles up that easily.

              3. Yeah, I looked in detail at that study. Not impressed.

                They looked at reinfections occurring during May–June 2021.

                Everybody who’d previously had Covid had it in March to December of 2020. Mostly November and December.

                The vaccine didn’t become available in Kentucky until January of 2021, and they used people who’d been vaccinated as recently as 2 weeks prior to the reinfection.

                Every prior infection had happened before any of the vaccinations, the periods during which they occurred didn’t even overlap. Most of the vaccinations had been only a couple months earlier, all of the prior infections had occurred half a year or more earlier.

                They were comparing waning natural immunity to peak vaccine immunity!

                1. Which does support the position that if you had COVID back in April of 2020, you should get vaccinated now. It doesn’t support the position that if you had COVID in July of 2021, you should get vaccinated now.

                  1. Nisiiko,
                    The problem is that the Biden policy makes no such distinctions and prefers not to recognize naturally acquired immunity despite a significant number of scientific studies published in high impact peer-reviewed studies.
                    Again, I ask, where is the science?

      2. Yeah, I’m well aware of what the CDC is saying. I’m not asking what the CDC is saying. I’m asking if the mandate can be “necessary and proper” if it’s not actually necessary,, not whether the CDC is recommending it.

        1. The thing is, when discerning what is ‘necessary’ in this instance, a judge is going to *and should* defer to the national agency of relevant experts. I mean, are they supposed to act like they know this field better (this is more rhetorical than anything, knowing Brett). The judge, not being an expert, has to ask: does the government have a good reason to exercise the power they would have if there is a good reason? And the answer of: hey, the experts in our leading national agency say it’s best has to be accepted by them as a darn good reason.

          1. The key is the antibody test that actually measures antibody levels. So if someone gets that test and they are at the level that provides protection then they should be exempt from the vaccine. Now they might have to get another test in several months but vaccinated people are having to get multiple vaccines. Once again, it requires blood and sending the blood to a lab so it isn’t really a good solution but it should be an option nonetheless.

            1. Both the antibody test and the shot require sticking a needle into you. The antibody test requires withdrawing a tiny amount of blood, the vaccination involves injecting into you a biologically active substance.

              I’d call the latter more invasive, myself.

          2. If the natural immunity isn’t adequate because it could be improved by a booster shot, even though it is conceded to be comparable to the vaccine without the booster, then why aren’t they mandating vaccination plus a booster shot? The vaccine derived immunity increases after a booster shot, too.

            They’re setting the bar at one height for the vaccine, and a different height for natural immunity. That doesn’t even clear rational basis, it’s irrational.

            1. I just think the logistics are too difficult with an antibody test that measures antibody levels. Maybe we could add an antibody lab to the blood donation buses and then people could donate blood or get a quick antibody test. And then for younger Americans that fear giving blood we could have a tattoo parlor/piercing bus in which young Americans can get their nose pierced and give blood for an antibody test.

            2. This is another classic Brett example where since he can’t think of any reason for this it’s irrational and/or a plot.

              1. “Think of”.

                Maybe you should produce a reason. I’m not the one proposing to order people about.

                1. Of course you have trouble thinking of something that would counter the strong extremism you live by.

                  Maybe, try. In law school they make you take the side you don’t agree with automatically and grade you on how well you defended that position. That’s a task equally unimaginable as farcical re you.

                  1. Your position is basically, they get to order people about unless it can be proven they’re wrong. Your default is submission.

                    My position is that, if they want to order people about, the burden is on them to demonstrate they’ve got a good reason. My default is liberty.

                    1. Which, incidentally, is how leftists demand that all of their tyrannical overreach be judged. They don’t have to prove that banning magazines of over 10 actually does anything useful, they want you to prove that you need larger magazines for self defense!

                    2. There is positive evidence that widespread vaccines have large positive effects for the country as a whole in mitigating the virus. Saying that there isn’t is just dishonest.

                      If you want to make the argument that unless the evidence can convince everyone or that it has to convince each individual before that individual can be subject to a health directive, you know that will never happen with anything. Nothing in life hits 100%.

                      If you are arguing that those who choose not to believe consensus medical opinion should be immune from the consequences of their choices, the answer is no. Accountability is cannot be avoided or deferred.

                      If you wish to follow in the footsteps of civil disobedience movements, you have to accept the consequences of your choices to give it any credibility. Otherwise it’s just entitlement and liberal individualism at its worst.

                    3. What is the “consensus medical opinion” that vaccines are necessary for those with real antibodies? Is this the same “settled science” that human activity is causing climate change and the same “settled science” that children adopted by gay couples fare just as well as traditional families?

                    4. Nelson,
                      What is also dishonest is hospitals not reporting all serious side effects. My son has such a side effect and though he is being treated our HMO will not report it as a side effect or even as a potential side effect.
                      I have also had a persistent side effect, again not reported by my HMO.
                      So, tell me, what is the standard of honesty?

                      When offered a booster, which CDC is now discouraging a s premature, I will get it. Whether my son will I will leave to him; he is an adult and a member of two state bar associations; he is competent to decide for himself without a Presidential mandate

                    5. Don Nico, you had a side effect from the vaccine? which one?

                    6. Nisiiko,
                      Both my son and I had the Pfizer-BionTech vaccine.

                    7. Thanks. Can I ask what the side effects were? I had a headache from the second shot of Pfizer, but that was about it.

            3. Brett, calling it irrational is too charitable

        2. Brett, the test of necessity is, of course, for congress, and it is a political test, not a scientific one. The standard necessity is gauged against is whether a constitutionally empowered objective is the object. The standard for whether the means chosen is proper is whether the means is reasonably tailored to accomplish the objective. None of those tests can be accomplished scientifically, and courts should not attempt to rely upon science to rule on them. It is unlikely you would ever see this, but if completely bogus science were the only means to accomplish a constitutionally empowered objective, at least in principle Congress ought to be permitted to do it that way. Courts cannot be permitted to enforce a standard of scientific proof on political policy.

          1. “Courts cannot be permitted to enforce a standard of scientific proof on political policy.’
            Says who aside from you?
            If a party with standing brings suit, the courts will decide.

            1. Says who aside from you?

              Don Nico, this nation is governed by a political system, not a scientific system. It would be illegitimate for a court to set aside a politically and constitutionally acceptable policy because it did not comport with science—except on a showing that the scientific flaw occasioned certain failure for the policy—in which case the policy could be ruled, “improper.” But if the policy can work, despite a scientific flaw, and if the end sought is constitutionally authorized, then a court has no business evaluating the science, or any other reasoning used to justify the policy.

              What you seem to intend is that science be used to empower a judge to determine whether a particular policy is necessary, and thus enable a judge to impose the judgment of science on congress, to constrain its ability to choose a means of carrying out its legitimate objectives. Since you asked, John Marshall disagreed with that:

              Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

              In short, if congress thinks even anti-science is the best means to accomplish a constitutionally legitimate end, then it is not for the court to cite science and say otherwise. (Once again, with the exception that if the scientific flaw shows the proposed means must fail, then the means can be ruled improper.)

              1. SL,
                You simply begged the question.
                If someone with clear standing brings suit in an Article III court, the courts will decide no matter what blah-blah you write.

                “What you seem to intend is that science be used to empower a judge ”
                I said and did not intend any such thing. Judges will get and advocates will provide what ever information might be relevant, either scientific, political or procedural. Don’t try to put words in my mouth and quit the mid-raping.

                “if congress thinks even anti-science is the best means to accomplish a constitutionally legitimate end, then it is not for the court to cite science and say otherwise.”
                I will repeat, that if someone with clear standing brings suit in an Article III court, the courts will decide no matter what blah-blah you write.

                1. I will repeat, that if someone with clear standing brings suit in an Article III court, the courts will decide no matter what blah-blah you write.

                  And, apparently, you suppose no matter what Chief Justice John Marshall wrote either. Events could prove you correct about that. Sad day if so. Judicial supremacy is a far worse method for governing the nation than politics is.

                  Perhaps you did not notice, scientific supremacy is not at stake, nor even admitted to the discussion. Heedless repetition of an off-the-point argument does nothing to improve focus on the issues actually mentioned. I suggest your commentary routinely urges scientific supremacy as a tacit premise for judicial decision making. I am all for science myself. Science should get far more weight than it does in legislative decision making. But supposing science can substitute for politics as a method of governance is folly.

                  Go ahead, convince me I have misjudged your intent. I say, courts must not be permitted to invade the legislative prerogative because the judges believe the legislature got the science wrong. Convince me you agree with that, and I will admit I misjudged your arguments. Repeat yourself, change the subject, criticize me, or otherwise avoid the point, and bystanders will judge for themselves.

    5. Brett’s comment – “Something like 40M have been confirmed by tests. And having contracted Covid is approximately as effective as the vaccines at producing immunity!”

      Slight disagreement is the last statement. Evidence is emerging that infections with the live covid virus are provide much better immunity.
      A few examples
      1) Israel is having a large spike among their vaccinated population
      2) A nursing home in Texas had a large outbreak among their vaccinated patients , though no re-infections from patients that had previously had covid.
      3) My wife got infected this week even though she was vaccinated.
      Those are just a small sample, though reinfections with individuals who have had covid has been rare.

      Brett’s point remains valid in that there should be an exception of those individuals that better immunity. There remains the question if taking the vaccine weakens the immunity after a live covid infection.

      1. That’s extremely unlikely.

        The thing is, the vaccine was very carefully optimized to create the strongest possible reaction against a particular strain’s spike protein, while the immune system tends to just go after every exposed part of the virus.

        It’s like a rifle shot that drops the target in its tracks IF it hits the right spot, vs a shotgun blast that causes the target to bleed out with even a partial miss. The natural immune response is more robust against mutations, but it’s inherently more variable.

        1. Brett Bellmore
          September.10.2021 at 6:53 pm
          Flag Comment Mute User
          That’s extremely unlikely.

          Brett I am only disagreeing with you based on ancedontal evidence. I understand that with some viruses, the vaccine provides better long term immunity, with other viruses, the vaccine provides lower levels of long term immunity. It may be too early to tell, but with the evidence I am seeing, the live virus provides a lot better immunity than the vaccines. Time will tell. (note my three examples above).

          I do agree with that there is currently little scientific basis to require the vaccine after having the live covid infection.

      2. If a vaccinated person gets infected but doesn’t end up in the hospital or with permanent health effects, the vaccine was successful. I see a lot of assumptions that a vaccine isn’t working if you can still get sick. The point of this vaccine is to avoid permanent medical issues–including death. On that front, it’s highly successful. Studies are showing vaccinated patients with COVID having mostly mild to non-symptomatic infections. This is also reflected in the low percentages of vaccinated people in hospitals versus the unvaccinated.

        1. There are always two goals with a vaccine: protect people from getting serious illness, and protect people (especially the contacts of vaccinated people) from getting infected. Respiratory viruses make the second goal much harder to achieve, but reducing total infections is arguably the more important goal during a pandemic.

        2. Well, yeah, I would never argue that the vaccine doesn’t work or isn’t worth taking if you haven’t had Covid yet. I was planning on getting it myself, I just happened to contract Covid before it became available for my cohort locally.

          I went through a couple days of a bad head cold to get my immunity, and the vaccine would almost certainly have gotten me there with less ill effects.

          But, like perhaps a third of the American population, I DID get my immunity the hard way, and it’s totally irrational to demand I get a redundant shot. There’s no medical basis for demanding that people who’ve had covid already must get the booster people who haven’t had covid aren’t required to get.

          In regards to people who’ve already had covid, the mandate serves no medical purpose. The only purpose is political.

          1. What’s the political purpose, Brett?

            1. It’s obvious at this point the purpose is unquestioning compliance. After this past year it’s readily apparent what the power of fear will drive otherwise rational people to do, or not do, as the case may be.

              1. Currentsitguy, you think you are denouncing tyranny, but reliable compliance is a legitimate political goal. To optimize economic recovery from the pandemic, reliably visible compliance may be necessary. Not many folks will be going back to the movies based on right-wing anti-vaxxers announcing without proof that they don’t need vaccination because they caught Covid.

                1. You have the burden of proof backwards. The burden of proof is on those who say that those who have had COVID and have antibodies need vaccination, not on those people to prove that they don’t.

                2. SL’s dictionary:
                  “reliable compliance” = strict obedience
                  “right-wing anti-vaxxers announcing without proof that they don’t need vaccination because they caught Covid.”
                  Another stupid statement that flies in the face of facts. Learn something SL.

                  1. Don Nico, for a while there you were doing a pretty good job presenting yourself as an advocate for science and forthright discussion. That seems to be slipping a bit. Don’t let yourself drift in the direction of movement conservatism, it would make you look less dignified.

            2. They’re basically using the virus as an excuse to roll out an American “social credit score” system, similar in principle to China’s. Once it’s in place, the basis for lowering your score can be extended beyond whether or not you knuckle under on medical demands.

              That’s my take on it, anyway. After 9-11, damnably, we allowed our government to start constructing the various pieces of a police state. Warrantless surveillance. No fly lists establishing that normal parts of live could be arbitrarily taken away from people without due process. Operation Choke Point pressuring financial institutions to cut off legal businesses under the threat of abusive regulatory action. (Now extended to cutting off IT services.)

              Now they’re using the pandemic as an excuse to fit the pieces together.

          2. Not to trivialize your point, but I got two shots. So if getting COVID is shot #1, then getting a booster is effectively shot #2. I don’t think it’s right to frame this as something vaccinated people aren’t required to do.

            Also, the Pfizer and Moderna vaccines work differently in the body than getting the disease so there might be a good medical argument for getting a single shot post-COVID. I’m not a medical expert but getting that booster is recommended by actual experts too.

            We don’t know how long COVID immunity lasts, acquired or the vaccine-based versions. So saying it “serves no purpose” is a bit firm given the circumstances. But I would agree that a reliable anti-body test should be acceptable.

            1. The problem with your reasoning is that getting Covid is shots 1 AND 2. Just having had Covid without any vaccine gets you as good or better immunity than the two shots. Getting a shot in addition gives you substantially better immunity than the 2 shot vaccine.

              So why are they demanding that people who’ve had Covid must undergo a procedure to end up with better immunity than they’re willing to accept from just the vaccine?

              Not for medical reasons, certainly.

              1. He (extreme partisan, non-medical expert) can’t imagine why, so it’s obviously nefarious.

                Brett in a nutshell.

                1. Another case of a pure ad hominem to advance a partisan line.
                  Brett cites a result measured in several directly on point research papers in high quality medical journals.

              2. Brett – I think we both agree that you get equal to or better immunity with the live covid than with the two vaccine shots. (though there is strong indication that the live virus give much better immunity)

                That raises the question as to whether getting the vaccine after having the live virus provides any additional protection or if it lowers the immunity to the level of the vaccine ? Its worth exploring the question. That being said, if the incremental increase is trivial, then there is really no medical reason to get the vaccine after an infection.

                1. “or if it lowers the immunity to the level of the vaccine?”

                  That’s what I’m saying is extremely unlikely, based on everything I know about immunology. I wouldn’t say it’s categorically impossible, but if you can demonstrate it, you’ve probably got a good shot at a Nobel prize in medicine, it would be that unprecedented.

                  1. That’s what I’m saying is extremely unlikely, based on everything I know about immunology.

                    Concur that it is probably unlikely. Though great opportunity to test the hypothesis. There is a large pool of previously unvaccinated and previously infected covid individuals. lets hold off vaccinating that pool of individuals so that it can be tested 1-2-3 years down the road. That pool is already at very low risk for reinfection.

          3. Brett ,
            As you know, I am an advocate of being vaccinated if you are COVID-naive. I also know that there are serious side effects. My son developed one and is still very far from out of the woods.
            The US governments may require its employees to be vaccinated. It can require the prime contractors that operate government facilities to require vaccination, but ordering private employers to so so crosses the line into executive lawlessness.

            1. I’m sorry to hear about your son. I’m thinking of him and wishing him a complete recovery. Hopefully soon.

              1. Thank you for your good wishes, Nelson.

        3. Agreed, but remember that a huge percentage of people end up with very mild or no symptoms, even without the vaccine.

          That’s especially true for the children the media is demanding we think of.

        4. “If a vaccinated person gets infected but doesn’t end up in the hospital or with permanent health effects, the vaccine was successful.”

          Um, no. Large majorities of people who AREN’T vaccinated who get infected don’t end up in the hospital or with permanent health effects.

          1. tkamenick, in general, there is a class of problem which involves dividing cases into a large good class and a small bad class. You have to reason carefully when dealing with that class.

            I will give you an example completely off-topic, to bypass controversy. People who buy telescopes pay attention to a bad class of occurrences, involving light scattered randomly in the optical path of the instrument. Consider the problem using some made-up numbers. Instrument A is 96% efficient, and scatters 4% of the light entering the intrument. Instrument B seems slightly better, at 98% efficient. But a would-be purchaser must pay a far higher price for instrument B.

            Why is that surprising? It is because looking at the wrong side of that kind of comparison mis-focuses attention. Small-percentage bad effects can’t be evaluated using a comparison of the numbers on the large-percentage virtuous side. In the telescope, that scattered light degrades images, and in instrument A there is twice as much degradation as in instrument B. Concentrating on the slight comparative variation on the virtuous side misses the point—which is that the object is to minimize the bad effects, and those show a large comparative variation.

            Presumably you see the point as it applies to your comment.

    6. Brett. Your point is obvious to everyone, but not to the President, a lawyer.

    7. While I believe that vaccination is the best route I would accept immunization by having contracted Covid-19 under two condition. The individual can clearly show they had the disease by a recorded test or being under a doctors care for the illness. No self diagnosis. Second the exposure was less than 12 month ago, if not then a booster is required. Is this an acceptable compromise?

      1. That sounds reasonable as it definitely recognizes immunity from a prior infection. Under that standard the balanced position is that booster shots must be obtain no latter than 12 months after the original vaccination sequence.

  2. Pursuant Blackman’s rationale in California v Texas the Supreme Court could find this mandate unconstitutional which would then make everything the federal government has ever done unconstitutional including the Constitution (except the 2A would remain because it was drafted specifically to grant rights directly to the people and survive a nuclear holocaust). Let’s get this done Supreme Court!

  3. “The Supreme Court’s 1905 ruling in Jacobson v. Massachusetts likely precludes such challenges”

    A state police powers case.

    Contra United States v. Lopez and United States v. Morrison

    1. A distinction that would matter to “federalism and separation of powers challenges” but not to ones based on “individual rights grounds”.

      Or, exactly what Prof. Somin said.

      1. Alfonso D. Lopez, Jr., the plaintiff in “United States v. Lopez”, was a single individual.

        He sued and won.

        Which means so can any other single individual in this trash case

  4. A virus so deadly it justifies curtailing liberties on businesses and private citizens nationwide on an unprecedented scale. But not deadly enough to justify inconveniencing migrants at the southern border.

    Sentient covid strikes again.

    1. I still can’t figure out why the Taliban weren’t afraid of Covid?!? I mean did they follow Covid protocols while conducting military operations? Are their leaders vaccinated?

      1. If you follow the news the virus apparently sympathizes with Democrat politics and will preferentially attack Republican and conservative gatherings while scrupulously avoiding gatherings leftwingers participate in or support. I guess it classes the Taliban as Democrats.

        1. This is just demonstrably false. If Covid favored Democrats (think about how silly that is!) it wouldn’t be surging in many ways during a Democratic administration.

          1. He was being sarcastic. Get it?

          2. I think perhaps you need to adjust your sarcasm detector. Pretty sure that was a joke.

            This thing just got better. Congress and it’s employees are exempt from this. Something something done animals are more equal something something something.

            Biden is somehow making Trump look competent. Seems impossible I know, but dayum.

    2. You do get this is a double edged sword here, right? I mean, given you don’t think Covid is a problem your bringing up border enforcement tied to it is obviously in bad faith.

      1. It’s not, actually. One can be opposed to current admin policies regarding illegal immigrants regardless of COVID, yet point to the double standards employed by the admin as far as the deadliness of the virus.

        1. But it’s of course a double standard for someone who says Covid is no big deal to then say ‘we must seal the borders because…Covid!’

          1. But it’s not a double standard to say to somebody who does think Covid is a big deal, “Then why aren’t you sealing the border?”

            When people don’t act according to their professed beliefs and motivations, you start to suspect they’re lying about them.

            1. Likewise, for people who said Covid is nothing, criticizing someone for not acting on Covid is obviously bad faith.

              1. It’s bad faith to notice that somebody isn’t acting according to their professed beliefs? How convenient for hypocrites and frauds, to be entitled to not be called out on it.

                1. She acts like she is very invested in that position for some reason. Can’t imagine why.

      2. 1: I think that Covid has been seriously overblown as a problem

        2: I’m not going to listen to anything any government says about Covid, so long as they’re not following their own rules.

        So, Newsom going to the French Laundry for an expensive meal with lobbyists while violating his Covid rules means taht no one else should be bound by those rules

        The Biden* Admin letting Covid infected, or untested, illegal aliens in the US means that nothing they say about how “serious” Covid is should be taken seriously by any sane individual

        And any person who actually thought Covid was a serious issue would be loudly, vociferously, and constantly attacking the Biden Admin for allowing illegal entry to the US by people who haven’t been tested and proved Covid negative

        American citizens can’t legally fly into the US without having a negative Covid test taken in the last three days.

        But Mexican Citizens can waltz across the border, be tested positive for Covid, and still be released into the US

        “Is X important?” i know your answer to that question be “are you playing politics with X?”

        If the answer is “yes”, then it’s not important

  5. >>>>>>>>>>>>>>
    likely precludes such challenges, except perhaps in a few extreme cases (e.g.—if an employee can show getting vaccinated would create severe health risks for her, but the administration still tries to force vaccination).

    its well documented that the severity of side effects increase the more times you are vaccinated and if you are vaccinated despite already having covid. Its hardly an unlikely scenario that a no exception mandate would create additional health risks for tons of people being forced to take the vaccine regardless of whether they’ve already had it.

    1. “its well documented that the severity of side effects increase the more times you are vaccinated”

      Gonna have to ask for a source on that one. And that Facebook post from someone with a PhD in organic gardening methods isn’t a source.

      1. points to two such studies, and describes a plausible mechanism that would cause that effect.

  6. Tell me more about this business of it being perfectly OK to load more conditions of employment on federal workers. Th eimplication seems to be that if they refuse to accept your extra conditions, you can fire them.

    My understanding was that it’s quite difficult to fire federal workers. Is the answer to this is that you can, with no legal problems at all, just dump more and more onerous conditions on them until they find going to work intolerable and resign; or else they say “shan’t !” and then you get to be able to fire them ?

    Asking for a friend.

    1. “It’s curious that you can require federal workers to submit proof of their legal status in this country, does that mean we can just dump more and more onerous conditions on them until they find it intolerable and resign?”

    2. You’ve found the real problem here, the mandate is in violation of the unions’ collective bargaining agreements with the government. The administration will need to renegotiate those contracts in order to enforce the mandate, and the unions will get their pound of flesh out of the deal.

  7. I’m pro-vax — I’ve had 3 shots. But for Gosh Sakes! Why are we trying to impose a vax mandate by an admin agency that really isn’t in that business? Biden should demand that Congress pass a LAW — remember those? This used to be called a “Nation of Laws” — a Law requiring whatever our representatives think ought to be required. The fate of the CDC’s “eviction moratorium” is a pretty good hint as to where this new attempt to short-circuit legislation is headed.

    1. Now here’s a rational comment. My instant inclination is this.

    2. Generally agree. Suspect some parts could be justified by existing laws granting agencies lots of discretion. But by no means all.

    3. And the situation is exactly the same as the border wall. Courts should interpret the fact that vaccines have been around for many months but Congress hasn’t acted yet as THE evidence, conclusive and irrefutable so far as the courts are concerned that there is no compelling need.

      The situation is exactly the same as with Trump’s border wall. Congress’ considered decision not to act never creates an emergency.

      What’s sauce for the goose has to be suce for the gander.

    4. Biden is “Commander in Chief” for federal employees. So where this flows from his role as an employer, I don’t see a problem with him creating mandates for employment. Mind you, I was active duty military and I don’t recall Congress having to pass a law regarding which vaccines I received in Basic Training.

      For federal contractors, the government as employer should be able to make policy regarding drug use (legal or not) or other personal factors that can impact their time working for the feds.

      All of this impacts medical costs and lost work and other issues that are legitimate concerns for employers–even more so than what recreational drugs people do on their own time.

      Where Biden’s plan reaches into private employers, that seems like overreach to me.

  8. I think the spending clause justification is the most dubious.

    Just as the Trump administration couldn’t impose a requirement that states cooperate with Homeland Security as a condition for federal funds, the Biden administration can’t impose a vaccine mandate as a condition. New conditions on receipt of federal funds have to be imposed by Congress (at least when imposed on State agencies and entities).

  9. It’s possible to have a valid legal argument but a stupid and destructive reason for pursuing it.

  10. For the millionth time this has nothing to do with Federal courts..the Federal Govt simply doesn’t have the authority to do this in the Constitution. It it isn’t specifically isn’t there kids. States have a natural pre Constitutional right to nullify any Federal orders if they violate the Constitution. States can ignore old Corn Pop’s communist directives…its high time States tool their natural rights back from a corrupt Federal capital

  11. When I first heard of the vaccination mandate on federal employees, I thought that might not go over well at the Post Office, given the demographics of postal workers. Then I saw the Post Office was exempt. Curious, that.

    Later I saw someone suggest that maybe the exemption was to assure enough personnel available to have another “super-secure” mail-in heavy repeat election like 2020. Or perhaps it was partly a thank-you for 2020.

    Anyone have any non-political suggestions for the postal worker exemption? Because I know Team Biden is all about The Science and wouldn’t be playing crass, naked politics.

    1. CORRECTION: I was mistaken about the exemption. I was going by a Washington Post story, which has since been corrected/updated.

  12. “[G]etting the shot takes only a short time, and afterwards you can soon get on with your life, as normal.”

    Define “soon”. I voluntarily got vaccinated, but both rounds knocked me out of work for 3+ days. And as a contractor, if I’m not working, I don’t get paid.

    So it’s not “five minutes later and you’re good to go”.

    1. Sorry to hear that, perlhaqr. Me, I had no problem from my 3 shots except a little site pain in my left arm from the booster. I’m 78 with a heart condition, so getting covid could have been a serious problem for me, worth even being knocked out of work (if I still worked) for 3 days per jab. Not necessarily true of everyone. That’s one reason I don’t support vax mandates for everyone. But even in your case, 6 days out of work is less than the effect of a covid infection. I think you ought to be allowed to make your own decision, and I also think that getting the shot might be the right decision. Better that you make the decision than Slow Joe.

      1. Who is to be deprived of decision-making?

        Driving requires a license; no one is required to take that test. Charlie Watts owned many classic vehicles but had no license.

        Shopping at stores and working in offices require clothes; people are free to be naked as much as they like, but not in Costco, on a shop floor, or at a law firm reception desk.

        Choose to avoid vaccination? Be self-employed, find an employer who will let you work from home or accept testing, or retire. Stay out of stores that promote safety.

        Consequences and accountability for decisions is not deprivation of choice.

      2. Sure. My point was only that it’s not necessarily “in, out, and on your way” for everyone.

        And 6 days out of work is only *possibly* more than the effects of a Covid infection. There is some evidence that the people who had severe reactions like I did had already had asymptomatic Covid.

        Like I said, I did it voluntarily, I’m generally in favor of vaccination for Covid, and I think it’s unlikely to affect many people negatively. That said, I absolutely oppose a mandate. Hell, if it’s effective, I don’t have anything to worry about from the unvaccinated anyway.

  13. “A virus, like that at the root of the present pandemic, arguably doesn’t qualify as a “substance or agent.” These terms generally refer to chemicals, liquids or man-made dangers, not living things.”

    A virus particle is not a living thing. I think they teach that in high school biology.

    1. That might be — likely still is — the prevailing conclusion, but I had a teaching assistant in college who contended that viruses are as alive as are bacteria, and that line of argument probably persists decades later. The professor warned us about relying on ‘a virus is alive’ during exams.

    2. There has been a lot of discussion and research pushing back on the idea that a virus is not alive, but it hasn’t achieved any sort of consensus.

      1. I don’t know much more about it than a teaching assistant said viruses were alive, the professor found out about that and pointedly warned us not to bet our grades on it, and it still seems like an interesting subject decades later.

  14. It must be something to stand up in front of the nation to declare the full weight of the federal government is behind protecting the ability of a woman to make a decision to terminate a human life, when you couldn’t figure out how to evacuate a few thousand people in an orderly manner with the unlimited resources of the military. Then to go on and on about “choice” only to a few days later tell Americans they have no choice but to get vaccinated if they want to keep their job and livelihood.

    This kind of gaul takes an extra special sociopath (or at least a senile old man who can’t remember what he did yesterday.)

    1. Terminate what you, but not the vast majority of people, considers a human life.

      1. Literally denying victims their humanity.

        1. Literally denying a bundle of cells equivalence with a real individual human. That’s logical.

          The false equivalence of “8 cells equals a human” is not logical.

          FIRST, gain general acceptance for a definition of “human” that includes a fertilized egg. THEN use it to condemn others.

          Since it hasn’t logged more than 15% support, you have a lot of work to do before you can turn “pretending that you are right” to “being right”.

    2. And they do have a choice. They can quit. I am 100% in favor of people taking a stand and living their beliefs. That in no way means they can avoid the consequences of their actions. Accountability matters.

    3. Except for BLM rioters and a whole other list of left wing activists that should get off free of responsibility every time, amirite?

  15. Mandating the vaccine for hospital employees and front line workers does not make logical sense. According to the CDC we know that the vaccinated can spread covid as much as the unvaccinated. The vaccine is for the individual getting vaccinated so that their risk of hospitalization and death is reduced, not for preventing the spread.

    1. The hysteria they’re whipping up about the virus being spread by the vaccinated is just that. Yes, it’s possible to spread the virus while vaccinated. That doesn’t mean it’s remotely as likely as if you’re immunologically naïve.

      Likelihood matters when you’re trying to reduce transmission.

  16. Vaccine requirements by any employer are violations of treaty, namely the Nuremberg Code. Therefore I don’t think governments at any level can demand them.

    1. Where were all of these disaffected, antisocial right-wing misfits when schools were requiring vaccinations of toddlers for decades?

  17. It makes little sense to me that OSHA would impose this requirement for all workers. And only at certain businesses strangely. We don’t all have to wear safety harnesses to protect against falls. We don’t all have to wear respirators. We don’t all have to be trained in blood born pathogens. And now a 50 person business doesn’t have to follow safety rules?

    As more workers are classified as 100% remote, why would they be required to get a vaccine to protect against workplace hazards? Sure, the machinist who must work in the factory can reasonably be required to get one. But the accountant who works from home and does all meetings by zoom? Where’s the OHA connection?

  18. Whether viruses are living things isn’t even remotely settled, and the “Not alive” argument is generally better supported.

    Beyond that, this would seem to be an argument that no biological substance; anthrax, ebola, smallpox, could be regulated as dangerous. Surely you’re not claiming an employer right to make employees handle samples of those diseases without regulations for their protection? Reading the statute with the ejusdem generis standard, viruses and other harmful microorganisms are clearly like chemicals and agents that are physically damaging, moreso where whether it’s even alive is subject to debate.

    1. Prof. Blackman is just flailing here. His arguments are about as nuanced and persuasive as one might expect from a striving-too-hard, fringe law professor trying to punch above his weight from a fourth-tier school.

      1. I assume I am responsible for placing this one in the wrong place, but can not understand how I did it.

  19. IANAL.
    From my perspective (fully vaxxed but against mandates), the govt is proposing to restrict liberty by requiring a medical treatment.
    That was ok with respect to smallpox a century ago- a highly lethal contagious disease with no alternative prevention or treatment. This virus is different in a lot of ways.
    There is a legal principle of compelling govt interest I have read about here and elsewhere, which is arguably present (debatable in a disease with >98% survival). There is also a concept of having to restrict liberty with the least restrictive means.
    N95 masks are readily available (Amazon and elsewhere) for less than a dollar apiece. A well fitted N95 mask will protect the wearer with extremely high reliability.
    GIven that this means of protecting the vulnerable is readily available, how is it justified to mandate anyone taking this vaccine?

    1. I don’t find many, if any, N95 masks on Amazon at $1.00 per mask or less.

      There are some KN95 masks for less, but those are NOT N95 masks and are not subject to certification by any trusted agency. Testing has revealed that many of these “KN95” masks don’t filter anywhere nearly as well as they claim — and that is not even considering the fact that most of these are ‘ear loop’ models so even if the material filters adequately, the fit is likely to result in them being less effective than a legitimate N95 mask (as of last year, there were no N95 masks w/ear loops).

      1. You’re right, most of the sub-$1 masks are Chinese knockoffs. To get name brand American N95s, it’s a bit more than a dollar per, unless you use the URL below, which sells 3M N95s at <$1 in 500 lots.
        But, my query stands- where do they get off limiting the liberty of a free people when self self-protection for vulnerable and concerned populations is readily and cheaply available?
        My conclusion is that they just like to push people around. That's a foreign concept to me, and, I hope, to you, but both history and the present is full of people like that.

  20. Too many like the author are now saying they support vaccination but not a mandate. Had they been more forceful in their support of the vaccine a mandate may not have been necessary.

  21. I do appreciate that someone is making a nuanced and reasoned case on this subject., especially with a legal angle included.

    Leaving aside the crazies talking about Bill Gates and microchips and magnetism, the simplistic argument that health directives during a health emergency are tyranny on one side and the simplistic argument that vaccines are the only way and those who refuse are evil and deny science is dishonest of both.

    As long as you assume that others don’t understand the “most important thing” and are awful and evil and trying to impose some sort of New World Order, you will be part of the problem, not the solution.

    Accept the idea that others don’t believe as you do *and that that is a good thing*. Accept the idea that there is not one, universal truth, but instead that people see different priorities on different issues *and that that is a good thing*.

    Stated broadly, heterodoxy in what it means to be free and American and good and decent is important. The minute you start talking about “real” Americans or “real” Christians or “real” anything, you are dismissing someone else’s right to decide issues for themselves. That is a bad thing.

  22. First, Let’s assume an ETS was appropriate. Shouldn’t the Administration also release the regulation(s), or perhaps even more strict ones, for the required notice and comment period so they can become bona fide “non emergency” regulations?

    Second, why did the Administration limit this mandate to businesses with over 100 employees? Is there some technical reason that limits OSHA from regulating smaller businesses? Is the health of employees of smaller businesses less important? If the risk of spreading the virus is thought to be higher with a larger employee base, shouldn’t the limiting criteria be something like “employees at work sites where more than 100 workers gather at the same facility at the same time”? A business that has small outlets spread across the country may only have three employees at any one site. Similarly, employees at a business with 1000 employees who are all working remotely and never meet in person seem to be at zero risk of “workplace” virus spread.

    Third, why didn’t this order require that employers not subject their employees to unvaccinated customers? Customers, in some businesses, are likely to present a greater risk to employees than coworkers.

  23. Indeed, many requirements routinely imposed on employees are far more onerous than vaccination, including even such things as having to show up to work every day! The latter is a far more significant restriction on liberty than getting vaccinated;

    Given that people have died, and others have suffered several health effects, from taking the Covid vaccine, no, “being forced to show up at work on time” is not a “more significant restriction on liberty” than getting killed.

    “If it saves one life!”

    1. Given that people have died, and others have suffered several health effects, from taking the Covid vaccine,

      Given that Greg is making this up…

      1. Wow, you’re seriously trying to claim that no person has been harmed by the Covid vaccine in any way?

        So, you’ve switched from TDS to Covid Derangement Syndrome?

        All vaccines have side effects in some percentage of the population.

        1. Yes. A very, very, very small percentage of the population. The derangement is among those who believe that it is a significant number relative to total number of jabs.

          1. Bzzt, thank you for playing

            I didn’t say it was a huge number

            I said it was more than 0.

            That’s all I need.

            Which is why you’re beating up straw men rather than addressing my actual argument

            1. Any argument that requires the “other side” to be 100% right is a bad faith argument. Nothing in life is 100%. If you want to actually engage in a philosophical discussion with people from a variety of worldviews, come join our reindeer games. If not, please stop cluttering things up with your ridiculous “if even one person is hurt, it’s wrong” bullshit.

    2. “Given that people have died, and others have suffered several health effects, from taking the Covid vaccine, ”
      Sure, some have.
      But several orders of magnitude more have died from severe COVID-19 infections

      1. So?

        Unless you can prove that ever single person harmed by the Covid vaccine would have had equal or greater harm from Covid, a vaccine mandate harms, and kills, individuals who wouldn’t have been harmed or killed without it.

        Which means it’s a serious threat to [some] people’s bodily integrity.

        Nothing is preventing YOU from taking the vaccine.

        As people who’ve had the vaccine can still be carriers, a vaccine mandate doesn’t keep you from being able to get it from your co-workers. And since an infected vaccinated individual is more likely to be asymptomatic than an infected unvaccinated individual, your vaccinated co-workers might even be a bigger threat to you (esp. since a vaccine resistant strain is far more likely to breed in someone with the vaccine, than someone who wasn’t vaccinated).

        There are no legitimate scientific or health reasons for this mandate, it’s all just about politics.

        If the Covid “vaccine” was an actual vaccine (which is to say, as effective as the MMR, tetnus, or smallpox vaccines) rather than a “flu shot” leve of effectiveness, you might have an argument.

        Of course, if it was an actual effective vaccine, those who’d been vaccinated wouldn’t have their panties in such a tight wad about the unvaccinated

  24. ** Why a Mandate when it will not fix the problem**
    The Vaccine is NOT a cure.

    The continuous Vax shots due to continuous COVID morph

    Vax User get COVID – it just masks the symptoms
    Multiple articles on Vax people still getting COVID
    – Read the verbiage used regarding people in hospitals vax vs non-vax. They only have stats on people in hospitals

    Highest Vax nations have the highest hospital issues??
    And why would this be- Vax users are caring COVID unknowingly

    UnVax haters
    If you have your Vax and willing to stand behind it, leave the choice to others

    Other Choice for people who get COVID and are non-Vax
    Regeneron’s COVID-19 antibody therapy- Many health plans carry it

  25. This is just the test case for what’s coming down the pike, OSHA declaring systemic racism and climate change to be “grave dangers”.

    1. Indeed. Don’t forget political extremism, like believing in small government and treating everyone equally before the law.

  26. This is not as well reasoned as usual, and it is at least partially based on a false premise.

    First, there are logical errors. The biggest probably is the straw man comparison of the injection to showing up for work. Showing up for work is included in that prerequisite for the labor contract — oral or written — that is called the “meeting of the minds,” the explicit and implied terms to which the parties agree. This is a ludicrous comparison because most a reasonable person would not judge receiving an experimental medical treatment to be part of a labor agreement. Coercing such by threatening the employee’s livelihood is literally a defined crime against humanity.

    You may say it’s not experimental and that it’s approved. Whatever you think of the FDA’s astoundingly fast approval of Comirnaty without long-term studies and with more than double the deaths reported for its experimental counterparts through VAERS in less than a year than for all injuries compensated for all conventional vaccines from 2006 to 2016, the fact is there are zero doses of Comirnaty available. Only experimental doses are available.

    It would be a misapplication of Jacobson v. Massachusetts to say it could govern cases involving mandates for the Pfizer, Moderna, and Johnson&Johnson experimental products and even for approved Comirnaty. The COVID-19 “vaccines” are gene therapies that would be better described as preemptive therapeutics than as vaccines. The COVID-19 gene therapies were designed to minimize or even prevent symptoms of COVID-19 and do so for many people. Unlike conventional vaccines we’ve used for over two centuries, the COVID-19 gene therapies do not provide sterilizing immunity. Thus, recipients can contract SARS-CoV-2 infection and spread the virus as readily as non-recipients. Worse, infected recipients are less likely to have symptoms and such recipients will unwittingly go about their days spreading the virus, while non-recipients will often have symptoms and stay home.

    Finally, there is equity. I can’t imagine anyone here hates people in less wealthy countries. Most people in the US who want these treatments have received them or soon will. Mandating them will give many millions of doses to unwilling recipients for whatever reason — ethics, have natural immunity from having COVID-19 that’s superior to the COVID-19 gene therapies, risk/benefit judgment. Those are doses that cannot be shipped to hundreds of millions of vulnerable elderly and others in less wealthy countries, people who want these treatments.

    Given the equity issue and that the COVID-19 gene therapies only protect recipients at best and can carry terrible side effects — especially in younger patients who are also less likely to be vulnerable to COVID-19 — I find it incredible anyone can support mandating them.

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