The Department of Labor will enact an emergency rule to require major employers to ensure their workers are either vaccinated or tested on a weekly basis, President Joe Biden announced on Thursday. The move is a significant step toward ensuring that enough Americans are vaccinated to put the pandemic behind us, and it naturally prompted immediate outrage from Republican politicians and conservative pundits, who drew from a familiar arsenal of strange notions of “liberty” and fantastical understandings of American history.
“President Biden is taking dangerous and unprecedented steps to insert the federal government even further into our lives while dismissing the ability of Iowans and Americans to make healthcare decisions for themselves,” Iowa Governor Kim Reynolds declared on Twitter. “South Dakota will stand up to defend freedom,” South Carolina Governor Kristi Noem asserted in another post, adding in an aside to Biden that she will “see you in court.”
Perhaps the most detailed and reality-detached commentary came from Texas Representative Dan Crenshaw. “Are you people trying to start a full on revolt?” he asked in a series of posts on Twitter. “Honestly what the hell is wrong with Democrats? Leave people the hell alone. This is insanity.” Crenshaw framed his opposition to the mandate as one rooted in American history and politician tradition. “Our founders designed a system that treated citizens as more than just children,” he argued. “Our grand experiment is designed for a free people. Yes, that entails risk. Yes, I’ll take risk and freedom over a paternalistic government any day.”
As courageous as it is to volunteer others for the risk of dying from Covid-19, the Biden administration is right not to follow Crenshaw’s demand to “leave people the hell alone.” Every single American has had three to six months to get a free, safe, and effective vaccine at walk-in clinics across the country. At the same time, Republicans have done almost everything they can to depress vaccination rates and urge constituents not to take basic precautions. Whatever the federal government can lawfully and reasonably do to break the GOP’s public health filibuster should be done.
Occasionally you hear Republicans note that previous generations of leaders didn’t use heavy-handed mandates to get Americans to accept vaccines, which is only partly true. Most Americans alive today went to public schools that require certain vaccinations for enrollment. So have universities and colleges since the mid-twentieth century. Every living American who served in the armed forces first received a bevy of shots; this includes the millions of young men who were conscripted to fight in World War II, the Korean War, and the Vietnam War. (The Occupational Safety and Health Administration rule for the private sector isn’t technically a vaccine mandate since unvaccinated workers can stay in compliance by getting weekly tests, but both its proponents and opponents are calling it one, so for simplicity’s sake I’ll follow suit.)
But the broader point—that Americans didn’t need mandates to get vaccinated in the Good Old Days—is more damning for those making it. Most Americans who were born in the twentieth century or lived through it were only one or two generations removed from an age when epidemics were a fact of life and deaths from infectious diseases were all too common. A handful of survivors of the Spanish flu pandemic of the late 1910s are still alive today; scholars believe it killed more Americans than any single war, disease, or disaster before or since.
In short, everyone arguing about this issue today lives in a country where deadly and debilitating infectious diseases are exceedingly rare because of mass vaccination campaigns and mandates. In some ways, Americans have become victims of our own public health successes. What would have been common sense and basic civic virtue 50 years ago—vaccinating ourselves for the benefit of our communities—is now an alien principle to those atomized souls who cherish bitter partisanship over national fellowship. And to whatever degree the Biden administration’s move smacks of paternalism, it’s probably because the refuseniks are acting like toddlers.
Crenshaw’s claim that the “founders designed a system that treated citizens as more than just children” deserves additional scrutiny from another angle. He suggests that the Founders would have sided with Republicans in their hostility toward federal efforts to pressure Americans to get vaccinated. I’ve written about the probable views of figures like George Washington and Benjamin Franklin on this issue before, as have others like The Washington Post’s Tim Bella, and on the Supreme Court ruling that accepted vaccine mandates as a necessary feature of American life. Some conservatives now seek to push back on these points.
“Bella is correct to note that George Washington reluctantly imposed a vaccine mandate in 1777,” National Review’s Charles C.W. Cooke wrote on Friday. “But he did so on troops in the Continental Army, in the middle of revolution, 10 year[s] before the U.S. Constitution was written. That Washington did this tells us that he believed that a volunteer military could be forced to be vaccinated. But it tells us nothing at all about whether Washington believed that everyone could, let alone about what Washington’s view would have been on the legality of a mandate imposed by the states or the federal government within a legal order that did not yet exist.”
“In [the] coming days, all three of these claims—Washington, Franklin, and Jacobson [v. Massachusetts]—are going to be used to justify Joe Biden’s illegal federal order,” Cooke concluded. “Americans who wish to keep their constitutional system intact should note that not one of them even intersects with that question.” Since I’m a good sport, I’ll concede Cooke’s point that neither Washington nor Franklin wrote down “vaccine mandates are good, and the Supreme Court should uphold them,” mainly because they did not have an opportunity to do so. Edward Jenner’s smallpox vaccine wasn’t developed until 1796, six years after Franklin’s death and three years before Washington died, and did not become commonly administered in North America until the 1800s.
But Cooke also flattens and decontextualizes American history to make his case. The first president was more familiar with epidemics and infectious diseases than any American alive today. He watched his older half-brother Lawrence struggle with tuberculosis for years, even accompanying him to Barbados in 1751 for a restorative trip to warmer climates, where George caught and survived smallpox. The trip failed, and Lawrence died the following year. His younger brother Samuel also died of tuberculosis, which haunted many of the men of the Washington family during George’s lifetime. Martha Washington’s son John “Jacky” Custis accompanied his famous stepfather to Yorktown, where he tragically became one of the casualties of the historic battle—not from British cannon shells or musket balls, but from a disease he caught in the American camp.
Indeed, Washington’s order to inoculate the Continental Army against smallpox is all the more striking given how dangerous that particular procedure could be—many, many orders of magnitude more dangerous than any modern vaccine. Anne Steptoe, his brother Samuel’s fourth wife, actually died after receiving a smallpox inoculation in 1777, the same year as Washington’s army-wide order. Jacky Custis, George’s stepson, became so seriously ill after his inoculation that Martha Washington resisted getting one herself until George pressured her to do so during the war. These risks did not deter Washington from insisting upon it for his family and those around him.
Why does any of that matter today? In theory, it shouldn’t. The overwhelming medical and scientific evidence about the vaccine’s safety and efficacy should be enough to shape public policy. But since judges often draw upon the Founders’ thinking when deciding what the Constitution that they drafted allows, and since the public often looks to the founding era to decide what is or isn’t “American,” it’s a relevant question. Fortunately, all the available evidence suggests that Washington and Franklin, the twin pillars of America’s founding identity, were as enthusiastic about inoculation as any man of that era could be. Indeed, if Washington had explicitly refused to mandate inoculations for the Continental Army on philosophical grounds, you can be sure that right-wing columnists would be writing at length about it after Biden’s announcement.
Many conservative critics are proposing or demanding legal challenges to the OSHA rule. National Review’s editorial board denounced it on Friday as illegal and illegitimate. “While OSHA has authority to set certain health and safety standards in the workplace, it would be stretching its authority to claim that it can be used as a means to facilitate broader public-health goals,” the board wrote. Drawing comparisons to the now-moribund federal eviction moratorium, National Review urged the Supreme Court to take similar action against it through the shadow docket. “We hope that the Supreme Court will be just as incredulous when it comes to Biden’s latest overreach,” they concluded.
As I noted when Biden issued a new eviction moratorium last month, it was always a bit of a stretch to argue that the Centers for Disease Control and Prevention could freeze all evictions in the nation based on a loosely written federal law that was written for quarantines and cargo inspections. Indeed, it was slightly miraculous that the Supreme Court didn’t strike it down sooner. The same can’t really be said for the OSHA rule. Black-letter federal law from the 1970s allows OSHA to issue an emergency rule if it 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” and that “such emergency standard is necessary to protect employees from such danger.”
That seems fairly straightforward. Earlier this year, the Congressional Research Service released a helpful report on this particular mechanism that reviews past cases where courts upheld or overturned rules created through it. OSHA’s defeats generally involve cases where the courts concluded that the agency hadn’t presented convincing enough evidence that the “substances or agents” in question posed a “grave danger” to workers’ health. If Covid-19 does not count as a “grave danger” after killing more than 650,000 Americans, then I’m not sure what would.
Will the Supreme Court agree? The court’s conservative majority is generally skeptical, at best, about sweeping exercises of federal power, especially when they target businesses. At the same time, the justices have largely refused to interfere in public officials’ efforts to fight the Covid-19 pandemic. Aside from the eviction moratorium, which Biden himself admitted might be unconstitutional, and a handful of cases where churches claimed they faced stricter limits than similar secular gatherings, the Supreme Court has conspicuously stayed on the sidelines in these battles. Justice Amy Coney Barrett, the court’s newest member, even rejected a request to block college vaccine mandates in August without bothering to refer it to the entire court—a signal that it was too trivial to warrant the justices’ full attention.
Unfortunately, the rest of the American conservative movement seems more willing to embrace the virus to own the libs. I would like to believe that Republicans aren’t trying to prolong the pandemic to undermine Biden’s presidency. But it’s hard to find a reasonable alternative explanation. During the president’s remarks on Thursday, the House Republican caucus posted two messages in short succession that sum it all up. The first one implied that Americans should resist the OSHA rule: “The United States of America is the land of the FREE. Don’t let anyone tell you anything else, not even our President.” Nine minutes later, it made a second declaration: “Joe Biden has failed to protect the American people.”
The gambit appears to be as simple as it is callous: If Republicans fight hard enough against vaccines, masks, and other preventative measures, voters will punish Democrats in 2022 and 2024 if the pandemic persists and the economic recovery stalls. As the Post’s Greg Sargent noted earlier this week, GOP politicos are already rushing to lay the blame for this mess at Biden’s feet. “Democrats ran an entire campaign dishonestly promising that they alone could fix a once-in-a-generation pandemic,” Michael McAdams, a spokesman for the National Republican Congressional Committee, recently told CNN. “Now that they’ve completely failed and their poll numbers are tanking, they are desperate to shift blame.”
Joining forces with the virus comes naturally to some conservatives; indeed, it might be the purest expression yet of their commitment to minority rule. The vast majority of Americans want the pandemic to end. Many of them recognized they had a role to play and stepped up to make sacrifices for the good of their country. They obeyed stay-at-home orders and wore masks in public places. They avoided contact with loved ones and put their lives on hold. When the vaccine became available, they leapt at the opportunity to put Covid-19 behind them. And now they are being held hostage by a minority of Americans whose understanding of freedom and liberty goes no further than personal convenience and whose sense of community and civic life is only felt through partisan hatred. The rest of this country should not be subordinated to their whims.
It’s absolutely true that there are “vaccine hesitant” people well beyond the conservative movement and its pernicious influences. In some cases, working-class Americans have not yet been able to get the shot because they fear losing their jobs if they miss even a day of work to recover from it. The American health care system is full of tricks and traps that confound myself and other Americans every day, so a little mistrust of the system is understandable. Fortunately, the administration’s move will expand paid sick leave so workers can get vaccinated without fear of losing their livelihoods.
But the real engine of the pandemic right now isn’t deep economic inequality or health care bureaucracies: It is a right-wing movement that is willing to make itself and the rest of the country sicker for a slightly better shot at power. Their purported “freedom” comes at the expense of every other American’s right to live a normal life, and their infringement upon our liberties should be tolerated no longer.
