My Newsweek Op-Ed: "Biden's Vaccine Mandate Is Counterproductive and Likely Illegal"

"I have yet to find any historical precedent for such an invasive regulation of workers nationwide."


Newsweek published my new op-ed, titled "Biden's Vaccine Mandate Is Counterproductive and Likely Illegal." Here is the introduction:

With the stroke of a pen, the Biden administration will impose a vaccine mandate on 100 million Americans. Soon, workers from coast to coast will be faced with a choice: get jabbed, undergo weekly testing at their own cost or lose their job.

As a public health measure, Biden's orders may be salutary. But they stand on shaky legal ground. Historically, vaccine mandates have been imposed—if at all—by state governments, and not by the federal government. The new regulations invert this feature of our federalist constitutional structure: Biden's orders trump state policies that provided workers with the choice to get vaccinated. Moreover, the president acted unilaterally: Congress has not expressly authorized this sweeping expansion of federal power. Rather, to justify his edict, Biden reached back to a Nixon-era workplace safety law. I am skeptical that this half-century-old law can support Biden's novel mandate.

My reaction to the vaccine mandate resembles my reaction to other recent audacious executive actions: the President was faced with a problem; Congress refused to address that problem to the President's satisfaction; the President reached to the open-ended language of old statutes to find the power needed to address that problem. My general presumption is to be skeptical of these presidential discoveries.

NEXT: Judge Don Willett on Supreme Stalemates

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  1. I find that it is an amazing feat of political jujitsu for the GOP to have been turned into the party of anti-vaccination and pro-infection.

    But, carry on, sir.

    1. You are still completely missing the point. Vaccines may be a great idea. That does not mean that it is a proper role of the federal government to implement that idea. A presidency that has the power to unilaterally do things to you like when a D is in charge has the same power to unilaterally do things you won’t like when an R is in charge.

      1. This is a desperation measure to save lives, aimed at Republican states, where Republican governors have actively promoted the spread of the virus.

        1. You are really full of it. Nobody is preventing anybody from getting the vaccine. They are against making it mandatory. “Actively promoted the spread”? Really? How soon you forget last year, when the Democrats opposed the vaccine. Then they said that it couldn’t be ready soon. Now all of the sudden that they are in power it’s mandatory. Layoff the Democrat kool aid.

          1. Nobody here doubts that private businesses can require vaccinations. But that is exactly what Republican governors prohibited.

            Democrats never opposed the vaccine.

            1. Where did Republican governors prohibit private businesses from requiring vaccinations?

              Do you have a list of states?

              1. Do you seriously not know that several states have prohibited private employers from mandating vaccinations?

                1. Somebody in the class failed to do the assigned reading:

                  Arizona: Employers must provide reasonable accommodations for employees with sincerely held religious beliefs, practices or observances that prevent them from getting the COVID-19 vaccine. Exceptions can be made if it poses a hardship for business operations. The bill prohibits the establishment of a COVID-19 vaccine passport. However, healthcare institutions can require employees be vaccinated.

                  Arkansas: State agencies and state officials are prohibited from requiring people to get the COVID-19 vaccine as a condition of employment. These agencies cannot coerce individuals who refuse the vaccine by withholding career advancements, wage increases or insurance discounts.

                  Michigan: In a bill that passed in both chambers, any entity of the state that receives funding from producing, developing or issuing a COVID-19 vaccine passport is prohibited. Any public funds are prohibited from being used to implement a vaccine mandate program of an employer or state government.

                  Montana: An employer cannot discriminate against an employee based on their vaccination status. They cannot refuse employment or withhold wage increases based on having a COVID-19 vaccine. An individual cannot be required to get a vaccine that only has emergency use authorization or is undergoing safety trials.

                  New Hampshire: Employers can only mandate a vaccine as a condition of employment if there is a direct threat to the safety of others that cannot be reduced by reasonable accommodations. Any government agency is banned from compelling individuals to get the COVID-19 vaccine or provide proof of vaccination status to receive a public service or use a public facility.

                  North Dakota: A government entity cannot require documentation of an individual’s vaccination status to receive public services, funds or use public property. A state government cannot require private businesses to obtain documentation of vaccination status for communicating the status before employment.

                  Ohio: In a bill that has passed in both chambers, private and public entities are banned from requiring an individual to receive a vaccine that is not fully approved by the FDA. Unvaccinated staff members can’t be required to refrain from or engage in activities or precautions that differ from those who have received the vaccine.

                  Tennessee: A state agency, department or political subdivision cannot require individuals to receive a COVID-19 vaccine.

                  Texas: In a bill that passed both chambers, employers are banned from refusing to hire, discharging or discriminating against an individual because the individual does not provide proof of COVID-19 vaccination status.

                  Utah: A government entity is prohibited from requiring an individual to get the COVID-19 vaccine as a condition of employment or participate in an activity, before it’s fully approved by the FDA.


                  1. Speaking of failing to do the reading… Try to keep up. The assertion question is “Republican governors prohibited”.

                    Dumping a bunch of non-relevant garbo is hardly helpful.

                    Arizona: Has nothing to do with the assertion that the Republican governor prohibited private businesses.

                    Arkansas: Has nothing to do with the assertion that the Republican governor prohibited private businesses.

                    Michigan: Has nothing to do with the assertion that the Republican governor prohibited private businesses. (not to mention, governor is a democrat)

                    Montana: This one was on point… until FDA authorized Comirnaty, anyway.

                    New Hampshire: This one might be on point, depending on how hard it is to claim workplace safety is at issue. Apparently, though, employers aren’t finding it hard.

                    North Dakota: Has nothing to do with the assertion that the Republican governor prohibited private businesses.

                    Ohio: In a bill that has passed in both chambers … But despite passing both chambers was never signed into law by the (R) governor. What did pass into law was a ban on government entities requiring vaccination. So yet once again “Has nothing to do with the assertion that the Republican governor prohibited private businesses”.

                    Tennessee: A state agency… Once again, “Has nothing to do with the assertion that the Republican governor prohibited private businesses. ”

                    Texas: In a bill that… Once again, never signed into law. What Texas did sign was prohibitions on government. Once again, “Has nothing to do with the assertion that the Republican governor prohibited private businesses. ”

                    Utah: A government entity… Yet another case of “Has nothing to do with the assertion that the Republican governor prohibited private businesses. ”

                    Do you even read the stuff you post? Or do you just post a huge chunk of cut-n-paste irrelevancies to waste people’s time?

                    That tends to make people view you as an unserious person, you know.

                  2. Arizona: Employers must provide reasonable accomodations – that doesn’t prevent them from requiring vaccination, just that there are particular exceptions to any employer-mandated vaccine regimen that must be accomodated. New Hampshire is similar.

                    Arkansas – prohibits the state from mandating, not employers.

                    Michigan – the state can’t implement or pay to implement any sort of vaccine mandate. (Private employers can still mandate).

                    North Dakota – the state can’t mandate (private employers still can)

                    Ohio – only applies to vaccines which don’t have full FDA approval. I believe Pfizer was recently upgraded from emergency approval to full approval, so Ohio employers and the state can now mandate the vaccine, if they so choose.

                    Tennessee – the state can’t mandate (private employers still can)

                    Utah – only applies to the state, and only applies to vaccines which aren’t fully approved.

                    So the only two states that have actually banned private employers from requiring vaccines are Texas and Montana. What a crisis! (And given the last sentence you have for Montana, full approval might resolve it, i’d have to go dig out the actual text of the legislation to make sense of why that matters in the context of the preceeding sentences – something isn’t adding up here).

                    1. Ah, and you’ve misrepresented Texas (see DewbieDewbieDoo’s post), I see. Yeah, not seeing a crisis here.

                  3. Half of those state’s restrictions are solely against governments doing it.

                    Arkansas: State agencies and state officials
                    Michigan: any entity of the state
                    North Dakota: A government entity …state government cannot require
                    Tennessee: A state agency, department or political subdivision
                    Utah: A government entity

                    1. Aside from the fact that several are not, why is that any more defensible?

                    2. Are you suggesting that the state government itself isn’t entitled to decide what the state government will do?

                    3. Don’t forget states like Texas and Florida that have banned private businesses from requiring proof of vaccination for employees or customers. So, yes, the businesses can require vaccines but cannot actually enforce those requirements.

                    4. Are you suggesting that the state government itself isn’t entitled to decide what the state government will do?

                      No? I suggesting that when the state uses its lawful powers to do something stupid, I’m allowed to point it out.

                  4. IL has the strongest law against this, passed 15 years ago. Illinois Health Care Right of Conscience Act, 745 ILCS 70.

            2. Because yellow dogs are the smartest kind

        2. “where Republican governors have actively promoted the spread of the virus.”
          That is the kind of BS rhetoric that we learned about during the ra of McCarthyism, after 9/11 with the Patriot act, and now with the SARS-CoV-2 pandemic

          1. What do you call a governor banning schools from requiring masks? Not merely failing to create a mask mandate, but actually forbidding them?

            1. David,
              Do you actually watch what kids do? I find it very hard to believe that kids wear masks in any manner in which they could be effective. Keeping all school room windows wide open would be more effective in limiting the spread of disease.

              As for requiring masks or vaccination of school employees, I can see a rationale.

              1. Don Nico…regarding schools, I finally landed on: vaccinate the teachers, not the pupils. Agree: Leave the windows open for as long as you can.

                1. Do you know how many <18 year olds have died of covid?
                  How many of those had co-morbidities we don't know.

                  As usual, lacking facts, leftist use the "its for the childred" emotional appeal. I see it worked great. And not a single Doctor interviewed on TV, dared practice medicine, and explain more kids die during seasonal flu, than covid.

                  1. Yeah, I know. Covid doesn’t kill kids, and I’d wager they all had co-mobidities (the 8 children you reference). It is a waste with masks as well. Unless the kid is coughing out droplets, masks won’t do much of anything.

            2. Forbidding mandates does not forbid schools from encouraging masks or educating the students about masks or sending home information about masks; it merely allows the parents to make the actual decision about whether the child wears a mask to school or not.

            3. “actually forbidding them”

              Cafeteria libertarian. Stops at the schoolhouse

              Teachers and students can still wear masks. Personal choice, amirite?

              1. Indeed. Here in SC we have a ban on state schools requiring masks. My son is wearing one today, as a precaution, because he had a minor case of the sniffles over the weekend. The students were never banned from wearing them, the schools were just banned from forcing them to wear them.

          2. So Don Nico says “Republican governors have actively promoted the spread of the virus.” is BS rhetoric ?!? Here’s the facts :

            Look at the worst 20 states by most new Covid cases per capita & 18 voted for Trump (and are reliably considered Red).

            Look at the best twenty 20 states for least new Covid case per capita & 17 voted for Biden (and are reliably considered Blue)

            Statistics seldom come with so much stark clarity. There is a pro-disease ideology and a pro-disease party. You can see its message trumpeted on Fox News. You see its bizarre “cause” adopted by right-wing groups all across the country. You consistently see its reach across comments in this forum. And you see the support craven GOP pols give this cause in a myriad of ways, both large and subtle.

            Wanna call “actively promoted the spread” rhetorical? Sure; no problem. I guess being anti-anti-disease doesn’t make you pro-disease if you’re getting really fine with your distinctions. But this much is clear : Covid’s best friend in this country is today’s Right.

            There is no question whatsoever about that.


            1. As I said , BS partisan rhetoric about very different populations and demographics.

            2. Also you conveniently ignored the later comment about howthese are just more arguments about trading freedom for “security” from a rapidly evolving threat.

              1. And every person making those comments about “freedom” has lived with vaccine mandates all their lives. They’ve accepted them in grade school, college, the military. They’ve accepted them for their kids. Given that, you gotta wonder just where the posturing hysteria is coming from?

                You’ll try the federal angle of course, but the Right’s new anti-vaxx religiosity predated Biden’s latest proposals. For a while we heard it was driven by the vaccine’s emergency authorization, but I’ve seen zero lessening after the first permanent FDA approval. So where is it coming from?

                The answer : Being pro-disease (or anti-anti-disease, if you insist) is the ultimate F.U. to everyone & everything. And today’s Right is as addicted to that corrosively stupid nonsense as the worst crack addict to his fix.

                1. GRB,
                  “Being pro-disease ” that is a cheap shot. As cheap a pro-lifer calling a pro-choice advocate pro-murder.

                  As for the “emergency authorization” complaints, they were total BS.

                  1. Go back way over a year and I said something like this in a comment here: “Anti-vaxxers are equal-opportunity Stupid – spread evenly across the ideological spectrum”. And it was correct at the time. Your new-age types leaning Left were balanced by your anti-gubbmnit types leaning Right.

                    Clearly this isn’t true anymore, and it required a concerted effort for the Right to make that happen. To re-invent themselves as the pro-disease party took disciplined messaging across a wide front: Disparaging the seriousness of Covid, trashing every expert, calling the statistics faked, labeling the pandemic a conspiracy, relentlessly trumpeting quack cures, and throwing a hysterical snit over any pandemic measure. The final step was making anti-vaccine gibberish a core right-wing belief. If you need to call this anti-anti-disease, that’s fine. Just don’t kid yourself about the big picture.

                    Yesterday, Florida Governor Ron DeSantis threatened fines for cities and counties that mandate employees get vaccinated. If a city (say) requires healthcare workers get vaccinated or do regular testing, that city face a $5,000 fine for every single violation. “That’s millions and millions of dollars potentially in fines”, the governor bragged. Of course Florida – like every state – has countless vaccine mandates already on the books, but the politics have now changed. DeSantis needs to satisfy his pro-disease base to get the ’24 GOP presidential nomination.

                    1. “Anti-vaxxers are equal-opportunity Stupid ”
                      I won’t argue as I have little patience with stupid people. However we should still not be uncharitable or mean.

            3. Cases have always been a worthless proxy for making decisions.
              Deaths, while inflated, are inflated across the board.
              Quick count shows 6 red states in the top 20, and 16 blue states.

      2. Hmmm… Re-reading – your use of passive voice maybe means you didn’t mean what I thought you meant. Still, the point stands. This is not an argument over whether vaccines are a good idea. It’s an argument of who has the power to implement those ideas. Specifically, should that be
        – a unilateral power of the presidency
        – a power of the feds (that is, after an act of Congress)
        – a power reserved to the states
        – a decision left to individual citizens and families.

        Personally, I think this should be left to individuals. If you choose not to get vaccinated, neither I nor anyone else has a right to interfere with your chosen means of committing suicide.

        1. A colorable legal argument can still be made in bad faith, at the cost of many lives, which is what this is.

          1. The only bad faith I’m seeing in this discussion is yours with your flagrant rewriting of history and apparently intentional distortions of the motivations of your political opponents.

            1. The motivation is simple juvenile oppositionalism.

              1. You should do some reading on the psychological concept of projection. Then invest in a mirror.

        2. Unless you move to Mars, you are claiming the right to infect whoever you encounter, Typhoid Mary. That’s not suicide. It’s murder-suicide. Government at all levels should prevent that.

          1. We heard that about the Patriot Act 20 years ago. We are neither safer nor more free.

            1. Terrorism is not communicable like a virus.

              Also, the Patriot Act is still up and running. You and I may hate it, but in this Republic the public seems largely sanguine about it.

              1. S_0,
                ” the public seems largely sanguine about it.”
                That is my point exactly. The American public has gotten used to lost freedom. It will be probably getting over the freedoms lost to the present set over overreaches in the name of health security, if overreach is not stopped now.

          2. If you are already vaccinated, then I can’t infect you (outside some extreme medical scenarios that are beyond the reasonable basis for public policy). So, no, your Typhoid Mary analogy has no applicability to the current situation. Go peddle your fearmongering somewhere else.

            Qualifier: Yes, there are some people who are medically unable to get vaccinated despite their wishes to do so. Those people are at increased risk of infection and disease. Those same people are often equally unable to get vaccinated for influenza, measles, rubella and many other diseases for which we have vaccines. Their situation is tragic but we do not abrogate the civil rights of the entire country for those few. This disease is no different.

        3. This is not an argument over whether vaccines are a good idea. It’s an argument of who has the power to implement those ideas.

          Approximately 12 people are having that argument, while 120 Million are arguing that vaccines are a bad idea.

          This perfectly mirrors the Global Warming debates where arguments about the proper role and effectiveness of government mandates are entirely buried under arguments over whether Global Warming is *real*.

        4. Personally, I think this should be left to individuals. If you choose not to get vaccinated, neither I nor anyone else has a right to interfere with your chosen means of committing suicide.

          Do you apply this argument to drunk driving as well? If you choose not to use a designated driver, neither I nor anyone else has a right to interfere with your chosen means of committing suicide?

          1. That would be a good analogy… If being sober caused cars driven by drunk drivers to bounce off your own car, leaving at worst a minor scratch outside of rare circumstances.

            You’re trying to mandate vaccination as though vaccination didn’t actually confer any sort of protection.

            1. WTF? David is arguing both vaccine mandates and proscribing drunk driving work to prevent suicide and harming third parties.

              1. I think Brett is trying to jam natural immunity into the analogy.

                Which is a separate discussion about administrative practicalities being a proper driver of policymaking.

                1. Thank you. Now, his argument makes sense. That’s a legitimate consideration, but whether people who have been infected should be exempt from a vaccine mandate is a question for the elected branches to make in consultation with the public health officials.

                  1. whether people who have been infected should be exempt from a vaccine mandate is a question for the elected branches to make in consultation with the public health officials.


                    It’s also Brett’s favorite red herring in this argument.

                    1. Why a red herring Bernard?
                      The official policy of ignoring what has been measured to be robust immunity for the previously infected hardly seems like a red herrings as it is relevant for at least 42 million and more likely between 80 and 120 million Americans and is distinctly without medical justification if serology detects significant antibody levels

                    2. I agree it is not a red herring. However, it is not for the courts to pass judgment on.

                    3. Why a red herring Bernard?

                      It’s a red herring because Brett is not saying, “So these mandates are fine… but they should be tweaked to create an exception for those who previously had COVID.” He’s using it as a look-a-squirrel! deflection.

                      The fact that some people may not need vaccination because they have naturally acquired immunity is not an argument against vaccine mandates generally.

                    4. David,

                      I don’t disagree. But the recognition of naturally acquired immunity is not a tweak. It is a demand for sound evidence based medical policy.

                    5. But the recognition of naturally acquired immunity is not a tweak. It is a demand for sound evidence based medical policy.

                      Don Nico, in this instance evidence based medical policy would be misplaced. What is needed is sound public health policy, whether evidence based, politics based, trial-and-error based, or what have you. If it turns out a lot of anti-vaccine types, and political resisters, and who knows what others, decide to lie about acquired immunity, that would likely screw up public health policy.

                      If the stakes were not life and death, then maybe a liberty interest to permit lying would at least be worth talking about. But the stakes are life and death . . . and the national economy . . . and political advantages which right wingers think they can get by lying. It is remarkable that that last factor may be driving more than the others the national contention about vaccines.

                    6. Stephen,
                      Any medical policy that is not evidence based is NOT sound policy just because you think it is.

          2. If drunk drivers could only hurt themselves, I would eagerly apply that argument. Unfortunately the statistics show that drunk drivers primarily hurt others (often more severely than they hurt themselves – being drunk keeps you limp during the accident). That analogy has no applicability to this situation where your decision to be unvaccinated creates no significant risk to my fully-vaccinated family.

            1. Rossami : “…unvaccinated creates no significant risk to my fully-vaccinated family”

              The unvaccinated are 5X more likely to catch the delta variant and 11X more likely to die. That means anti-vaxxers create a 5X larger pool to maintain the disease, prolonging the burden of a pandemic your fully-vaccinated family must endure.

              It also means a greater risk of ever more variants : Echo, Foxtrot & Golf – any one of which might seriously endanger your family. There’s also the heavy load carried by hospitals & healthcare systems to consider – something else that may impact your (vaccinated) family. The choice of the unvaccinated doesn’t affect the vaccinated? That seems like libertarianism at a kindergarten-level to me. It doesn’t hold up to much scrutiny.


              1. GRB,
                DOE’s Berkeley lab posted just last week data from the CA deprt of public health that show that the vaccinated in CA account for 1/3 of the reported cases

                1. the vaccinated in CA account for 1/3 of the reported cases

                  So Rossami’s claims that the unvaccinated can’t infect the vaccinated is incorrect.

                  1. Bernard,
                    vaccinated persons can infect unvaccinated persons
                    vaccinated persons can infect vaccinated persons
                    unvaccinated persons can infect vaccinated persons
                    unvaccinated persons can infect unvaccinated persons
                    All true with documented cases

                    1. Don,

                      Yes. I know. Indeed, I have close relative – who is not only fully vaccinated but quite likely had Covid back when it was just starting its career – who just contracted it.

                      I was reacting to Rossami’s rather strong claim.

                      I think you will agree that, while vaccinated persons can infect others, they are much less likely to do so than the unvaccinated, if only because they are less likely to catch it to start with.

                      If 1/3 of CA cases are among the vaccinated then the unvaccinated have either 2.65 or 4.67 as great a chance of catching it as the vaccinated, depending on whether your data refers to fully vaccinated (57%) or includes everyone with at least one shot (70%).

                    2. Bernard,
                      I believe (but an not positive without checking back) that the statistic applied to fully vaccinated persons. The Berkeley lab is requiring full vacation or a medical or religious exemption.
                      As far as I know the strictest requirement is imposed by MIT that requires full vaccination or a medical exemption, a weekly test for all employees and a twice weekly test for students. Mask wearing in class except of the lecturer or a single student asking a question (in which case the lecturer has to mask) and a daily computerized attestation of lack of any symptoms

                    3. The Berkeley lab is requiring full vacation

                      That would probably be a more popular choice.

                2. Don Nico : “…the vaccinated in CA account for 1/3 of the reported cases”

                  Three points :

                  1. I’m not gonna claim my studies are better than yours, though that seems to be our battleground here.

                  2. Actually both could be right, as my link references Delta variant infections and yours maybe doesn’t. Irrelevant though.

                  3. Fact is, you don’t contest that the irresponsible childishness of anti-vaxxers affects their more adult brethren, you’re just arguing over the extent of the impact. Per your study, two-thirds of the new Covid cases are concentrated in about one-third of the population. Not as pronounced as the studies I linked to, but significant all the same. (now – go back up and read my argument)

                  Bonus Point : It seems adult responsible rational behavior is unevenly distributed across the vast area of The Golden State. Two guesses where it’s concentrated?


                  1. GRB,
                    1. I gave my source, the CA dept of public health. Argue with them if you disagree, but it is the official state statistic.
                    2. The cases count all infections, but as delta is more than 80% of the cases, that would be a small correction.
                    3. I don’t call [people whom I don’t know childish. Many may be. My first cousin (aged 71) is. Some have good reasons for not taking the vaccine. Others are on a political rant. I would get a booster when offered despite a recurring side effect; my son who has had a serious, worsening side effect with each of the two shot probably will not.
                    We don’t do the nation any good by trashing people we disagreement.
                    What does anger me, is the gross politicized misuse and misrepresentation of “science.” I am an active experimental research scientist. I do not BELIEVE in science. I practice a scientific discipline. And I see the political blah-blah about “science” as weakening the respect of the public for rigorous study of the underlying physics, chemistry, biology and mathemtics.

                    1. Don Nico, if that, “respect of the public,” extends to empowering judges by claiming, “science,” to overturn legislative prerogatives, then that is a respect which needs weakening.

                      More generally, your use of, “politicized,” as a cynical epithet deserves push-back. No matter how necessary they may find it to criticize particular political practices, sensible people do not categorically disparage the practice of politics. Politics is the only method this nation has to manage its public life.

                  2. Jason,
                    Mutations take place in ANY person infected with SARS-CoV-2, the larger the level of tires, the higher the probability of a mutation taking place.
                    Forget your blame game. It is no help to anyone

                    1. Thank you for the clarification.

                      It would still be fair to say then, that the unprotected are orders of magnitude more likely to be sources of variants than the vaccinated and previously-infected?

                    2. Jason,
                      Absent any large scale systematic measurement of the distribution of titre levels in vaccinated and unvaccinated covid-19 infected persons. You have no evidence based justification for your statement. Large scale is very important because most of thespread of the virus is due to the persons in the tails of the distribution function.

                3. Two quotes from my link on California above :

                  1. “In Silicon Valley, 73% of residents have been vaccinated. In Tulare County it’s 41%. To steal James Carville’s old saw about Pennsylvania, California is San Francisco on one end, Los Angeles on the other, and Alabama everywhere else”

                  (of course it’s impossible to draw conclusions about these different areas, their politics, vaccination rates and the effectiveness of their anti-Covid measures. Impossible !!! As Don Nico says above, it would be “BS partisan rhetoric about very different populations and demographics” to even try)

                  2. “The Delta variant surge reached critical levels in parts of the Central Valley this week, with some hospitals overwhelmed by a crush of COVID-19 patients and Fresno County officials warning they might take drastic action if conditions continue to deteriorate. In a sign of how severe the crisis has become, Fresno County‘s health officer said Friday that hospitals may be forced to ration healthcare — choosing who receives lifesaving measures — because of dwindling resources”

                  (whatya wanna bet plenty of vaccinated people are affected by a disaster made much worse by their anti-vaxx counterparts?)

            2. “That analogy has no applicability to this situation where your decision to be unvaccinated creates no significant risk to my fully-vaccinated family.”

              Except that isn’t true, because the mutations which continue to take place occur in unvaccinated people, and with each mutation, we get one chance closer to a variant which doesn’t care about our vaccines.

      3. Sure. But, if the objection was merely one of federalism, why haven’t the states implemented their own mandates?

        1. The whole point of federalism is that states can do *different things*. It’s no longer federalism if all states do exactly the same thing.

          1. Of course the point of federalism is states can do different things. But, it’s still federalism if they all freely choose to do the same thing (e.g., punish murderers). Unlike murder, there is a difference of opinion on the merits of vaccine mandates and those opposed should not hide their opposition behind a claim their objection is only about federalism.

            1. That seems to be missing the point about federalism, and attempting to through the conversation somewhere else…

              1. My point is many who argue their objection is only about federalism are being disingenuous. I think that is a very relevant observation and not at all a red herring.

                1. It seems like a diversion. The GOP has a long history of supporting federalism. On various issues.

                  1. I’m not questioning their support of federalism in this case. I am questioning that their position is only because of federalism.

          2. So will you do something about ALEC?

      4. “You are still completely missing the point. Vaccines may be a great idea. That does not mean that it is a proper role of the federal government to implement that idea. A presidency that has the power to unilaterally do things to you like when a D is in charge has the same power to unilaterally do things you won’t like when an R is in charge”

        I think I understand this point pretty well, and am actually hopeful that the “mandate” will be overturned as executive branch overreach.


        In the meantime, millions of people will get the vaccine as a result who would not otherwise. And most Americans who don’t particularly follow judicial v executive branch disputes will see this as a positive outcome even if a year from now the courts toss or limit the regulations.

        1. “In the meantime, millions of people will get the vaccine as a result who would not otherwise. ”

          I don’t think the word “get” is actually appropriate in the case of a mandate. “Be given”, maybe. “Have forced upon them”? Arguably. But “get” implies that they wanted it.

            1. Sure. If you get arrested, or get cancer, or get pregnant it clearly means you wanted it. Right?

            2. Not very strongly, I suppose, but it certainly doesn’t communicate the fact that everybody who ‘gets’ the vaccine as a result of the mandate will be somebody who didn’t want it.

        2. So you think that it’s unconstitutional but that some good stuff will happen in the meantime so that the ends will justify the means.

          There’s an adage about the paving on the road to Hell that seems applicable.

          1. I don’t know whether it’s constitutional or not. There are reasonable arguments on both sides re whether congress has properly delegated that power to OSHA.

            Taking the long view, I’d prefer that the legislature/judiciary claw back some of the power they’ve ceded to the executive branch. I”m not a fan of the unitary executive, regardless of which party holds the White House.

            But, yeah, some good outcomes will happen as the litigation proceeds, and I don’t think it is an example of a bad faith knowing violation of the constitution (i.e. Texas and Florida attacking the 1A rights of social media platforms) so I’m ok with that.

            1. You ok with the ends justifying the means, we get it.
              And when people who have other ends in mind use that same mechanism, what will you do?

        3. “even if a year from now the courts toss or limit the regulations.”
          and when they are required to get their 2nd booster shot against an endemic disease. And likely when the SARS-CoV-2 has evolved so that the NDT structure on the spike protein can completely mask detection of the receptor binding domain.

          1. What troubles me about that prospect is that “Operation Warp Speed” seems to have been totally shut down. By now we should already be putting updated versions of the mRNA vaccines into arms, and instead we’re just doubling down on an obsolete version of the vaccine. The rate of vaccine development seems to have slowed back to normal speeds, which aren’t adequate for dealing with a fast mutating virus.

            1. Brett,
              I hope that you are wrong, but I am afraid that the virus is working harder than our governments and than by pharma, in the race to avoid detection by vaccines based on a particular structure of the spike protein of the original Wuhan strain.
              If you see any recent medical papers on the mu variant please post the urls

    2. Freedom has less meaningful value if it doesn’t include the freedom to spread infection.

      1. You ought to look into the laws about HIV, knowing you have HIV, and having unprotected sex. Particularly in Cali. The results may just shock you.

        That said, you can also look into how we deal with Tuburculosis, and how we can’t mandate those people take their antibiotics. Again, the results might shock you.

        Many of these laws were put into place, by Dems, to protect gays when the right wanted to ostracize them. Funny how things work.

    3. If you oppose executive overreach and usurpation of power, you are pro-virus. If you find the post 9-11 response of the government is overreach and a usurpation of power, you are pro-terrorist.

      What is disgusting about your thinking is that you use this type of attack on those who oppose the usurpation of power. It is an excellent way to vilify one’s political enemies and if division and discord are your goal all while allowing the government to grab even more power, then take that path. It is the path of authoritarianism and modeled after all the great propagandists in history.

    4. “I believe vaccines, in general, are good”

      “I believe this vaccine sucks”

      “I believe this vaccine should be available for people to chose to take it, but no one should be forced to take it.”

      I’m trying to figure out what kind of mental process leads one to say “no one can say the first, while saying either the second or the third.”

      That’s major league logical fallacy time

  2. Nothing in that article about how a mandate would be counterproductive.

    The effect of the mandate would be to save the lives of thousands of Republican morons who currently go unvaccinated (and unmasked). And the lives of those they are breathing on, most notably their children.

    1. I’m all for dunking on Prof. Blackman, but he does say

      Finally, and tragically, Biden’s mandate may prove counterproductive. I fear that mandating vaccines will have the unintended consequence of increasing vaccine hesitancy. As any parent or teacher knows, when you order people to do something, they are motivated to do the opposite. Some employees will submit fraudulent vaccine records. Others will simply refuse to get their shots, and dare employers to fire them. And countless state governments, employers and employees will go to court to halt this program. This public health measure will be tied up in litigation for the remainder of the pandemic. Vaccination rates will likely initially increase but will eventually plateau, short of our goals.

      He’s clearly wrong, in my view, but he did put it in there.

      1. ” As any parent or teacher knows, when you order people to do something, they are motivated to do the opposite. ”

        Where they = misfits and antisocial jerks.

        1. Artie the bigot rears his balding head and squawks.

          1. I guess obsolete malcontents are just never going to like me.

            It therefore is fortunate that those losers are destined to be stomped by people like me in the culture war.

            Be nicer, buckleup, or you may no longer find yourself the undeserving beneficiary of your betters’ graciousness.

      2. I saw that and I took it as a joke. Republicans already are resistant to vaccines and Josh is not proposing any constructive alternatives. A mandate will call their bluff. If really faced with the loss of a job few people will refuse the vaccine.

        1. This must be your first exposure to Prof. Blackman.

          I wish I could tell you it gets better, but…

        2. You ok with the ends justifying the means, we get it.
          And when people who have other ends in mind use that same mechanism, what will you do?

        3. ‘If really faced with the loss of a job few people will refuse the vaccine.” – How about faced with jail time? better yet, torture? Even fewer people will refuse the vaccine in those cases, why stop halfway?

        4. >If really faced with the loss of a job few people will refuse the vaccine.

          Just like few people take drugs?

          I’ve been surprised (and alarmed) by the number of people in Pharma who have begun job hunts to leave companies that mandate vaccinations.

          1. I’ve been surprised (and alarmed) by the number of people in Pharma who have begun job hunts to leave companies that mandate vaccinations.

            Let me guess: exceeded only by the number of people in Pharma who have girlfriends, that are in Canada. You wouldn’t know them.

    2. COVID:
      R = lepers
      D = sheep
      War on Terror
      D = lepers
      R = sheep

      Otherwise, the story is always the same

      1. Your analogy between public health and national security is not as clever as you think it is.

        1. I did not say it wa clever. I am saying that the slide toward trading freedom for “security”is directly analogous and pitiful.

      1. One can only do so much to control the life-threatening effects of the stupidity of Republicans. The mandate is but a weak attempt but we adults are not all powerful.

        1. I’m sure the Mom’s who cannot get delivery help will be just as calm.

          How do masked and gloved staff transmit covid Dr. Capt?

        2. That hospital will be stronger after weeding the antisocial, disaffected jerks from its midst.

          Firing losers is sometimes complicated. Watching losers depart voluntarily is easy and beneficial.

    3. When calling people “morons”, one should refrain from making utterly moronic statements.

      Like, oh, claiming that Covid is in any manner a serious threat to children.

      Fix the plank in your own eye before worrying about the mote in others’.

  3. Didn’t the same thing happen with lynching?

    This is not a new thing. The question of whether it’s permissable is a question of whether the old statutes support the action.

    The one thing I’m incluned to agree on is that when the President goes to Congress and does not get what he wants, the situation is no longer an emergency, no matter how wrong we or judges might think Congress was in deciding not to act. However, this would only be the case after a reasonable period of time, and I’m not sure if it has passed. Covid vaccines are at this point newer than inmigration was when Trump declared an emergency after not getting funding for a border wall.

    1. 9 months since vaccine is plenty of time for Congress to act, especially since they’ve been running around like a chicken with its head cut off for almost 2 years now passing COVID-related laws for everything and the kitchen sink.

    2. Covid is over 18 months old.

      Nothing’s an “emergency” requiring the use of “emergency powers” more than 60 days after it started

  4. Are we the only country where 5 unelected and unaccountable people with three year degrees in reading excerpts of things other lawyers wrote get ultimate say over how to tackle a contagious and deadly virus that obviously isn’t going to care about theories of statutory interpretation, limits on federal power, or state borders?

    1. No, in some countries it’s a single person that has that power, and they don’t even pretend to read the things lawyers say.

    2. Answer: NO
      Comment: Pretty damned arrogant to ask your rhetorical question when any of the nine are deeper thinkers than yourself

      1. Lol. Yesterday ACB was introduced by Mitch McConnell at the Mitch McConnell Center to give a speech where she whined about the court being perceived as partisan. I wouldn’t call someone so oblivious/contemptuous a “deep thinker.”

        1. Remind me why we should consider your opinion as one we should actually consider?

          1. That’s a bit tautological. You could have said: “why should we care what you think?” Which I would answer: “you don’t have to because I’m just some guy commenting on a blog.” And none of that has anything to do with whether someone so oblivious/contemptuous could be considered a deep thinker or deeper than me. I mean I have enough self-awareness not to go to the Lefty-Center for Lefty-Things and then complain that people don’t take me seriously as a neutral dispassionate arbiter of the law.

            1. ” I mean I have enough self-awareness not to go to the Lefty-Center for Lefty-Things and then complain that people don’t take me seriously as a neutral dispassionate arbiter of the law.”

              Do you? Really?

              1. Yes. I definitely know it would be ridiculous to go to some partisan organization and be introduced by a partisan who is responsible for my position of power and then complain that no one sees me as neutral. You don’t need very much self-awareness or deep thought to figure that out.

                1. And yet, I give you the mainstream media organizations….

        2. By she thinks more deeply than you. That is all that I claimed

          1. Except based on yesterday, I’m not sure that’s the case. Even shallow thinkers don’t tend to be so utterly clueless/knowingly contemptuous of others.

            1. Since I did not hear her, I have no comment on her remarks yesterday

        3. “I wouldn’t call someone so oblivious/contemptuous a “deep thinker.”

          For a handmaiden who (claims she) believes fairy tales are nonfiction, she’s a deep thinker.

          Have you met many of those people?

    3. The ultimate say lies with the State legislatures.

    4. “get ultimate say”


      Welcome to the group that thinks Marbury was wrongly decided!

    5. Are we the only country where 5 unelected and unaccountable people get to rewrite abortion and marraige law based on their own personal desires?

      yes, i believe we are.

      So why don’t you STFU about “5 unelected and unaccountable people” until you’re ready to give up all the wins they’ve given your side?

      1. Letting someone marry the person they love isn’t a win for me or for my side it’s a win for that family and human decency.

        1. Giving someone the government benefits of heterosexual marriage, when they haven’t engaged in a heterosexual marriage, is a cheat that robs all of us who have real marriages.

          Society rewards heterosexual marriage because heterosexual marriage greatly benefits society.

          If there have been any studies that show that same sex “marriages” benefit society to the same extend real marriages do, I’ve yet to see one.

          You have one?

          One that shows that 23 year old men who “marry” other men become better, safer, drivers the way that 23 year old men who marry women do?

          To pull out just one example.

          1. As I suspected: you’re just a mean-spirited low class bigot. Good-bye.

  5. Can I assert an objection to “the full breadth of its levers of powers”? Powers may be broad, but levers? The defining feature of a lever is its length, not its breadth. Archimedes didn’t say “give me a lever wide enough and a place to stand.”

    1. I think it’s row after row of levers, like on a machine such as a giant church organ. Hence width of levers = many, many levers.

  6. The media has done a really good job of hoodwinking the public on vaccines. Maybe if they would have FOLLOWED THE SCIENCE back when Trump was President instead of suggesting the vaccines were hurried through, poorly developed, and a huge ticking time bomb of side effects, people would have been less skeptical when they rolled out EARLIER than Trump had said in Fall of 2020.

    Remember when Cuomo, in between sexually harassing women in his office and killing grandma in nursing homes, said the vaccine would only be used in New York after his panel of experts approved it? (Yeah that went down the memory hole really quick).

  7. I wonder why the President didn’t act earlier to mandate vaccination where he had authority to act, like all Federal Employees, all Federal Contractors and anyone accessing Federal Property. I’m not sure how wide that would sweep but it would be a lot of people.

    1. Probably because mandates are kind of a blunt tool and he assumed that hesitancy would decline as cases declined and people saw their efficacy. But that turned out to be an incorrect assumption.

      1. Or you have to give the public six months before you go full fascist after you spent the last four years calling the guy who used to be in office one.

        1. I am begging you, learn about fascism. It’s not “thing I don’t like” it’s not even “heavy handed policies.” It’s not even “authoritarianism.” It’s a mode of doing politics that has very identifiable characteristics

          Trump was called one because so much of his approach to politics matched fascist movements in the past. And you are the exact type of person a fascist movement appeals to.

          1. Many conservatives today would love fascism. But, having heard in American discourse this is a bad thing, but not understanding in any way why, they think they see a simplistic and useful cudgel (the heard of modern conservatism!) and run around bashing away with it.

              1. Well historically, fascist parties buddy up to the right wing. And all the appeals to traditionalism and nationalism aren’t really going to be super popular with liberal and left wing parties. I mean talking about the degeneracy of the diverse cities isn’t going appeal to American liberals.

          2. “Fascism” has two faces. There’s the stylistic face, and the implementation face.

            You can make a case for Trump on the stylistic face, (Not a good one, but you can make it.) but the implementation face? Not really. Things like the ACA are pretty classic economic fascism: Let the private owners of the means of production retain nominal ownership, but minutely regulate what they do with their companies, to the point that they are for all intents and purposes extensions of the government.

            1. Brett. You are not good at history or political theory. Please stop trying to be.


                1. Brett has a track record of historically illiterate commentary along with stubbornly insisting the historical profession doesn’t know what they’re talking about despite having ZERO historical training. So I don’t really care if it’s an ad hominem because it happens to be accurate.

                  Also not for nothing:


                  1. Then attempt to refute what he wrote, rather than engaging in ad hominem arguments.

                    1. I have over and over again. I’m not wasting any more of my time if he wants to willfully misunderstand fascist movements so he can call the ACA fascist based on his shallow understanding and totally made up category of “economic fascism” (which is simply any and every regulation Brett Bellmore doesn’t like).

            2. Also you’re bad a law.

    2. Actually many federal departments did exactly that with no fanfare months ago

  8. Your framing makes no sense based on what we know about partisanship and vaccine hesitancy. Under your theory of media raising doubts under Trump….democrats should be the ones most resistant but that is clearly not the case.

    1. Supposed to be a response to Jimmy

    2. A significant portion of the vaccine hesitancy comes from the core democrat constinuency – the black minority population.

      1. That would be not true. (Blacks aren’t a high enough percentage of the population for that to be true.)

    3. Not everything is partisan in nature. You had the media and left wing politicians questioning any vaccine for the first 6 months it was in development. Mostly because “Trump bad” and no other real reason. I couldn’t imagine why some people had an idea that taking the vaccine was not a great idea….

      1. Do you really think anyone on this site questioning the vaccines is doing so because they listened to Kamala Harris too closely?

        1. No they probably just saw six months worth of news telling them that. Things like that have a direct effect on people.

          1. Okay, do you really think too much uncritical faith in the mainstream media is the source of the issue for the people on here?

            Is it for you?

          2. No they probably just saw six months worth of news telling them that. Things like that have a direct effect on people.

            First, you completely made this up. Nobody saw any such thing.

            Second, Trumpkins don’t watch the news anyway, except their own insular portions of it (e.g. Fox/Newsmax/OAN). And they certainly don’t believe it.

            I mean, look at a topic where you actually do have the media telling people something for six months: Biden was elected freely and fairly, and there was no fraud. Did that cause Trumpkins to change what passes for their minds on the topic?

  9. People elect fascists, and the result is fascism.
    Wow, what an unexpected result.

    1. No. We didn’t elect a fascist. Fascism isn’t “policy I don’t like.” Once Biden starts talking about how corrupt urban elites and outsiders are causing degeneracy amongst a narrowly and ethnically defined nation and we need to promote traditional masculine values to return that nation to a glorious but mythical past through violence and subservience to a state who is embodied by a charismatic leader, then I might think he is a fascist.

      1. That sounds like China right now, which Biden and other Democrats treat as a source of inspiration. Would you accept that they are budding or wannabe fascists?

        1. No.

          1) “ which Biden and other Democrats treat as a source of inspiration.” Is incredibly stupid.

          2) If they’re wannabe fascists they’re really bad at it, since generally speaking they’re an ethnically diverse party that doesn’t advocate for traditional forms of masculinity and sexuality, have their electoral base in the critics, and take a critical eye to the past instead of arguing there is a mythical and glorious past we should return to.

          1. I can tell that when you hear “fascist” you actually think “Nazi”. The Italian fascists didn’t care if you were from from Rome or spoke Aostan Arpitan; the coordination between the state and Italian corporations was the essence of Italian fascism.

            Keep your eye on the actual subject at hand, which is the forceful regimentation of ostensibly “private” enterprises in alignment with the State; this is perfectly harmonious with the CCPs’ view of the place of any private enterprise as merely a tool of State interests.

            1. Democrats tend to focus on the cosmetic, Nazi aspect of fascism, because their own economic program is so closely modeled after the economic side of fascism, “dirigisme”.

              1. Democrats tend to focus on the fascist elements of fascism when criticizing fascism is certainly a take.

              2. Fascism in Italy is nothing like what’s happening in the US. Their nationalism is a good clue. As is their cult of personality.

                Fascism, like libertarian, has become another casualty of the political branding wars.

                It is not, in fact, things the government does you think they shouldn’t.

                1. Under Brett’s logic, every regulation is “economic fascism.”

          2. since generally speaking they’re an ethnically diverse party

            Not really. I mean, they’re not an ethnically pure party, and they have some token minorities in positions of sub-power, but they’re of course dominated by Han Chinese. (Not surprisingly, since the country itself is overwhelmingly Han.)

            that doesn’t advocate for traditional forms of masculinity and sexuality,

            Are you sure?


            1. I was talking about Democrats not CCP.

              1. Are they though?

                California is a majority minority state. Yet the Democrats are still running White Governors, with a long history of White Privilege…while disparaging the minority candidates that would replace them.

                1. Look at the picture of the freshman class for the US house in 2018 for the democrats vs the Republicans.

                  1. You can not reason with bigotry, superstition, or belligerent ignorance.

                    In other words, Republicans, conservatives, and clingers.

              2. Ah, ok. Wasn’t exactly clear from the comments, but fine. Yes, Democrats are commies, not fascists. The Trumpkins here need to get their epithets straight.

      2. No. It is an authoritarianism based on the the manipulations of the Corporate state much like what we a nt so slowly drifting towards

  10. They keep calling this “a pandemic only of the unvaccinated”.

    Is this true?

    Data on breakthrough infections is kind of sparse, but I’ve started checking state health department websites. I’ve found a couple so far that have pretty good data, and several (so far) that do not.

    Washington State (see
    Check out page 4 for details, but the breakthrough case death rate is: 0.8% (220/26339), versus a WA state entire death rate from March 01 until today also being 0.8%. Hmm.

    Page 4 also indicates 87% of the breakthroughs are symptomatic and 9% were hospitalized. Note they only had data on half (about 13K) of the breakthroughs. So it COULD be as low as 43% and 4.5%, respectively. But there’s no reason to assume all of the other 13K for which they do not have data were asymptomatic an not hospitalized. So the numbers are somewhere in between, and I’d guess a lot closer to 87% and 9% vs 43 and 4.5.

    Note the state-wide, pandemic-wide hospitalization rate is 5.6%. So with breakthrough deaths, hospitalizations and symptomatic cases very similar to overall, why are is this a “pandemic of the unvaccinated”?

    Vermont is another state with decent breakthrough reporting (see at slides 36 and 23 especially –

    VT deaths among breakthrough cases is 0.94% vs. VT state total rate of 0.96%.

    VT breakthrough cases requiring hospitalization is 2.7% vs. VT state total rate of 2.8% (slide 23’s population-wide hospitalization data vs. slide 36 on breakthrough hospitalized).

    These are only two states, but along with Israel’s information on breakthrough hospitalizations and deaths, why are no smart cookies in the media starting to question the “pandemic of the unvaxxed” narrative?

    (Note, I also posted this in another Reason article regarding these mandates)

    1. A disease with the transmissibility rates and fatality rates you just cited is no longer a pandemic.

  11. Sadly, sometimes “audacious” action is necessary, and this idiocy over the coronavirus is a perfect example. People are being stupid, and their stupidity has created a health crisis. I suppose I should care about the unvaccinated morons who are ending up on their death beds in hospitals but . . . . What I do care about is the cost that their ignorance is imposing on the rest of us. How about this as an “audacious” action: No more medicare or medicaid assistance for unvaccinated jerks who end up needing medical care. Sounds fair to me.

    1. I say we ban alcohol. The unnecessary deaths and collateral damage are too large an externality for the rest of us to tolerate.

      1. Terrible effort at analogy, JS. Your proposal is the equivalent of saying let’s ban Covid-19. Now, if an vaccine against alcoholism were to be developed and you’d like to discuss the merits of mandating that everyone be vaccinated to prevent being inflicted with the disease, some people might pay attention.

        1. He didn’t say “ban alcoholism “, he said “ban alcohol” which is in no way analogous to “ban Covid”. Are you seriously that dumb, or did you deliberately misrepresent what was written?

          1. Try again, ZZ. It’s tragic that your reading comprehension is so poor that you can’t follow the thread. Let us know if you need any help. Too bad there’s no magic pill or vaccine to fix stupid.

            1. There’s no need to try again, here’s the quote you are responding to: “I say we ban alcohol. “. Here’s what you wrote: “Your proposal is the equivalent of saying let’s ban Covid-19. Now, if an vaccine against alcoholism were to be developed,,,

              In your analogy, COViD-19 is analogous to alcoholism, not alcohol

              There are two options here: (1) You’re illiterate and too stupid to know it (2) you willfully misrepresented an argument.

              1. Keep working on your reading comprehension skills. You’ll catch some day.

    2. Should you get sick because of the vaccine, I forgive you for being misled or misinformed and would never wish you ill or seek to deny you or your family medical care or financial security.

      The first victim of the vaccine is often moderated reason. Prion disease is a terrible thing.

  12. Blackman might right in that it is presidential overreach irrespective of Jacobson v. Massachusetts. (If Jacobson applies to a state in a medical crisis, why might that not apply to the federal gov?) Nevertheless, morons like my governor, DeSantis, are killing people to appeal to the MAGA set. Then there is that guy in TX.

    There are bushels of unvaccinated Darwin nominees. The actual awards are backlogged – kinda like the ER at Mt. Sinai Hospital in Miami Beach due to Florida stupidity.

    Moreover, this IS a national emergency (I am thinking about a contrast to presidential war powers). Until we all mask up, socially distance and get vaccinated the virus will spread and it will mutate. Hospitals are overflowing with patients and they are disproportionately unvaccinated people.

    Schmucks like Mad Mat Staver are running amok amidst “conscientious objectors” who have a religious objection to the vaccine. It reminds me of the “no cake for you” boob.

    1. (If Jacobson applies to a state in a medical crisis, why might that not apply to the federal gov?)

      Jacobson does apply to the federal government, of course. But all Jacobson says is that a vaccine mandate does not violate one’s rights. It does not grant the government the power to mandate vaccines; that power must come from elsewhere. The states have it from the general police power. But the federal government doesn’t have a general police power.

      1. I believe federal workplace safety regulations are authorized by the Commerce Clause (or perhaps more accurately , the Necessary and Proper Clause applied to the Commerce Clause).

      2. Given state-by-state intransigence about vaccines, the nation cannot have a uniformly effective public health policy without a national vaccine mandate. If one state vaccinates and makes progress against a pandemic, and another state opposes progress, the resulting failure to wipe out contagion can re-spread contagion nationwide.

        The unwisdom of permitting avoidable virus generations to encourage mutations, and then to spread unchecked is manifest. Nothing but national power can thwart that. Even if you discount the value of life and health to zero, the nation will pay an avoidable economic price for a gratuitously extended pandemic episode—we are seeing that demonstrated now. Even critics of the commerce clause ought to be able to see that.

    2. Virus will mutate regardless of masks, social distancing or vaccinations. That is exactly what viruses are for.

  13. Resistance to vaccines is laughably irresponsible.
    Most executive orders are less than ideal, to be charitable.

    1. This isn’t an executive order.

      1. It is an ex cathedra decree

  14. Anyone else old enough to remember when Newsweek was a legitimate, respectable, credible, mainstream, widely read publication?

    (propulsion by Bill Wyman)

    1. You mean until they got bought by the Daily Beast…your kind of bigotry, eh Artie?

    2. So Newsweek was okay until they up and let a Blackman publish on their pages?


      1. Nope. Newsweek has been a shambling, fringe player for a number of years. A legitimate publication faltered as advertisers switched gears, then a series of schmucks misappropriated its reputation using ‘buy a shell for a buck’ deals. Today? It’s operated by and for a few losers and misfits.

  15. I’m wondering when JB will finally go back and realize that it might not pay to keep commenting breathlessly about things he doesn’t know about? Let’s look at the history here.

    Remember him refusing to understand, you know, the actual facts of what was being proposed? Good times!

    Or how about when he couldn’t seem to grasp that it wasn’t applying to states? So nice!

    Or how about his prediction of the orgy of litigation, because he didn’t both to look at the procedural issues? Yeah. That.

    Or the breathless reports that this was just like the ACA, despite the rather drastic differences? Hmmmm.

    Or his silence after one of his co-bloggers who knew something about administrative law (Adler) took a more even-handed approach? Yeah, that lasted a short while.

    Again, it would be nice if we could, for once, see some measured and astute legal analysis instead of breathless concern trolling about the “diktat” (really?) of the mandate (except it isn’t) that he couldn’t find any precedent for (even though Adler explained, in detail, exactly what his thought were on the issue, including how it had been used in the past).

    1. I’m wondering when JB will finally go back and realize that it might not pay to keep commenting breathlessly about things he doesn’t know about?

      Better clear your calendar.

      1. Ugh. I don’t even get joy from dunking on him at this point, because he makes it too easy.

        1. I hope Prof. Blackman doesn’t change a thing or a bit.

    2. Yes, Adler’s explanation was wonderfully reasoned and illuminating. Posts like that are the reason I read this blog every day.

      I used to think that the quality of this blog was ruined when the blackman kid came on board, but now I think that it is important to get the views of his ilk.

  16. Where in the Constitution does it say the federal government can force you to inject whatever substances they want into your bloodstream?

    1. It’s right there in the plain text of the Commerce Clause, isn’t it? One of Congress’s enumerated powers, so clearly this executive agency has the power to do what is necessary for what they think is proper.

    2. You know that the government has not proposed forcibly injecting anyone, right?

      1. You just won’t be able to work. No force involved, nope.

        1. If you want to read a 100 page law review article explaining how important that distinction is, I’m sure Prof. Blackman would be delighted to hook you up.

    3. AFAIK, the proposed order doesn’t actually force you to get vaccinated per se; instead, it requires employers with more than 100 employees to ensure their workers get vaccinated *or* get tested weekly. I think the only category that presently doesn’t have the testing alternative are federal employees, and it’s long been settled that employers can require their employees to be vaccinated as a term of employment. It’s also been long settled that states have pretty expansive powers to mandate vaccinations (Jacobsen and Zucht, although both cases are 100+ years old). Fed power is more murky. It’d have to be tied to preventing transmission across state lines, which we have here in a *pan*demic.

  17. Think about all the good that Dems could have accomplished with their slim (but still very real) majorities. Instead we have … this.

    The Dems new motto: “We’ll burn that bridge when we come to it.”

    1. Look up “filibuster”.

  18. Turns out that IL, of all places, from a law passed 15 years ago called the Illinois Health Care Right Act of Conscience – 745 ILCS 70.

    “The law protects people from government and businesses inquiring into or mandating any health care issues…..In September of 2020, an Illinois Court upheld this Act in determining in a preliminary Motion that Nurses can recover triple damages under the Right of Conscience Act – even against public employers and that this Act trumps other older and less specific laws, including TORT. This case was filed in 2016 and has not had a final ruling yet. The next hearing is scheduled for September 16, 2021, in Winnebago County Circuit Court.”

    1. I meant to write:

      *…from a law passed 15 years ago has the strongest law against forced vaccinations…

  19. Well written … but, I must admit, I am growing increasingly skeptical of the judiciary’s ability to rein in executive power in conformance with the constitution.

    Perhaps Trump and Biden were feeling this too, and that is why they both knowingly pushed the envelope.

    1. really? how did Trump “push the envelope”?

        1. Totally legit under the immigration laws passed by Congress.

          Roberts just decided to do a “but Trump” exception to the actual law, which gives the President broad powers to exclude non-Americans from coming to the US.

          Because non-Americans don’t have a right to come to the US. And Americans don’t have some magical right to bring in non-Americans who they want, but other Americans don’t want

          Unless, of course, the CJ decides to play with his magic beans

  20. If you were the SG defending the various executive actions to increase vaccination (>100 workers, receiving medicare/medicade) what would you brief? Precedents? Limiting factor(s)? Josh has argued relevance of eviction moritorium cases (“great substantive and independent power[s]’ beyond those specifically enumerated.”) and ACA (anti-coercion principle)…what is the counter-argument?

    1. There really is none.

      Which is why I expect SCOTUS to slap this down the exact same way they slapped down the eviction moratorium

  21. Wait. Does any State actually have the authority to force you to take a foreign substance into your body by a physically coerced injection? How can that possibly be legal? Don’t you have to look at the state constitutions?

    Even then…are we really saying a state can compel an individual to vaccinate against their will by force? I can see banishment or exile, but I cannot see any world where a state can physically coerce vaccination. That is a step too far. And I don’t think Jacobsen ruled on that specific question (could a state physically coerce vaccination), did it?

    1. “Does any State actually have the authority to force you to take a foreign substance into your body by a physically coerced injection.”

      Well there is lethal injection. Also they have the authority to place lead in your body based on some extremely flimsy justifications.

      1. LTG….True (on both). Neither really gets to my question, though.

        Is there a line wrt our individual liberties that simply cannot be crossed? Or is the State’s power limitless? I have a hard time believing that there is no limit on State power.

        1. Well, there’s Rochin v. California.

          1. Interesting case (shocks the conscience). I never knew where that phrase came from. Now I do. I learned something new today. Thanks for that cite.

  22. BTW, the headline for this press release is an utter lie:

    The headline:
    New CDC Study: Vaccination Offers Higher Protection than Previous COVID-19 Infection

    The reality of the study:
    In today’s MMWR, a study of COVID-19 infections in Kentucky among people who were previously infected with SAR-CoV-2 shows that unvaccinated individuals are more than twice as likely to be reinfected with COVID-19 than those who were fully vaccinated after initially contracting the virus.

    So, they did not compare “vaccinated but never had covid” to “had covid but not vaccinated”. They instead asked “if you’ve had covid, can you get more protection by also getting vaccinated.”

    I’ve gone into why their study design doesn’t justify their claims. but even if you like the study, it still says nothing about whether a person who’s been vaccinated, but never had covid, has s significantly less chance of catching covid than someone who’s had covid, but not the vaccine

    So, IOW, there’s not the slightest shred of scientific evidence that people who have had covid need to take one of the vaccines as well

    1. They also continently forgot to compare what level of protection between people who had covid three months ago with those that been vaccinated three months ago.

  23. At this point, it is unsurprising to see the usual crowd of fearful commenters who are unable to understand that being unvaccinated is not equivalent to being infected.

    Being unvaccinated poses no risk to anyone around you.
    If you are infected, you are a risk to people around you whether you are vaccinated or not.

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