The most audacious part of the COVID-19 plan that President Joe Biden announced today is a rule demanding that every U.S. company with 100 or more employees require them to be vaccinated or submit to weekly virus testing. In contrast with that bold assertion of federal regulatory power, Biden is still stopping short of a broad face mask mandate, which he has said is beyond his powers as president.
The difference between these two approaches is hard to understand based on what the law allows—or, more to the point, what the Biden administration has said the law allows. Biden’s sudden embrace of a federal vaccine requirement seems inconsistent with his acknowledgment that he cannot mandate every COVID-19 precaution he’d like people to follow.
The White House says the Occupational Safety and Health Administration (OSHA) “is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.” That rule relies on OSHA’s statutory authority to issue an “emergency temporary standard” if it decides the regulation is “necessary to protect employees” from a “grave danger” posed by “exposure to substances or agents determined to be toxic or physically harmful.”
When it comes to face masks, however, Biden is not claiming OSHA has the power to require them in private workplaces. Instead, Biden is extending orders that require face masks on federal property and in interstate transportation, including airports and airplanes. The transportation rules, previously scheduled to expire this month, will now be in effect at least until January 18, regardless of how many Americans are inoculated between now and then. The Transportation Security Administration is doubling the fines for violators, from $250 to $500 for the first offense and from $1,500 to $3,000 for repeat offenders.
Nor is Biden claiming he can simply order public schools across the country to require “universal masking.” Instead, he has instructed the Department of Education to investigate whether states that prohibit mask mandates in schools are violating federal laws that ban discrimination against students with disabilities. Assuming the department concludes that’s the case, that dubious legal interpretation, which would in effect make federal COVID-19 guidelines for schools mandatory, will bear fruit only if it is accepted by federal courts in the inevitable litigation.
During his presidential campaign, Biden repeatedly promised that he would force all Americans to wear face masks in public places but eventually conceded that the president does not have the power to do that. “I cannot mandate people wearing masks,” he said on CNN last September.
Yet in defending the nationwide eviction moratorium that the Centers for Disease Control and Prevention (CDC) imposed in the name of fighting COVID-19, the Biden administration argued that the Public Health Service Act of 1944 gave the agency the authority to issue any regulation it deems necessary to prevent the interstate spread of communicable diseases. That position implied vast powers that surely would encompass a broad face mask requirement, not to mention a general vaccination order and a nationwide version of the lockdowns that all but a few states imposed early in the pandemic.
The Supreme Court ultimately rejected the administration’s reading of the law, saying it “strains credulity” to suggest that Congress gave the CDC that “breathtaking amount of authority” (and furthermore, that no one noticed those dictatorial powers until last September, when the CDC first ordered landlords to continue housing tenants who fail to pay their rent). But it was always legally puzzling that Biden, given his administration’s avowed understanding of the Public Health Service Act, declined to invoke it as the basis for the mask and vaccination mandates he clearly wanted to impose.
Similarly, if OSHA can require private employees to be vaccinated (unless they submit to regular testing), why can’t it also require them to wear masks? This evening Biden called Republican governors’ resistance to mask mandates (which he tendentiously described as merely “encouraging people” to “mask up”) as “totally unacceptable.” Yet he is in fact accepting that situation as it relates to workplaces regulated by OSHA and, given the long odds against the success of the Education Department’s “investigations,” public schools.
Maybe Biden is implicitly conceding that masking (especially in K–12 schools) offers marginal benefits compared to vaccination. Or maybe he thinks a federal vaccination mandate will cause less of a public uproar than a federal mask mandate, which seems doubtful.
As Reason‘s Robby Soave notes, CDC Director Rochelle Walensky insisted as recently as July 30 that “there will be no federal [vaccination] mandate,” saying “I completely understand the pushback” against earlier comments she made that were interpreted as an endorsement of that policy. Around the same time, White House Press Secretary Jen Psaki said requiring vaccination is “not the role of the federal government” but should instead be left to “institutions, private-sector entities, and others.”
Evidently, Biden changed his mind about that, although he noted that “some of the biggest companies,” including United Airlines, Disney, Tyson Foods, “and even Fox News,” are “already requiring” vaccination. In addition to arguing that OSHA has the legal authority to mandate vaccination, Biden made a moral case for that policy. “This is not about freedom or personal choice,” he said. “It’s about protecting yourself and those around you, the people you work with, the people you care about, the people you love.”
It is true that unvaccinated Americans pose a potential threat to people with medical conditions that either preclude vaccination or weaken their response to it, and it is reasonable to ask who should bear the burden of those special vulnerabilities. But in general, as Biden emphasized, vaccination nearly eliminates the risk of life-threatening COVID-19 symptoms.
Biden scolded unvaccinated Americans, saying “our patience is wearing thin, and your refusal has cost all of us.” Yet while addressing “the vast majority of you who have gotten vaccinated,” he said this:
I understand your anger at those who haven’t gotten vaccinated. I understand the anxiety about getting a breakthrough case. But as the science makes clear, if you’re fully vaccinated, you’re highly protected from severe illness, even if you get COVID-19. In fact, recent data indicates there’s only one confirmed positive case per 5,000 fully vaccinated Americans per day. You’re as safe as possible.
Americans 12 or older already have the option of “protecting yourself,” and children face an infinitesimal risk of dying from COVID-19 even if they are not vaccinated. Given those realities, this policy looks more like paternalism than an effort to protect others from the unvaccinated. That presumably is what Walensky had in mind when she said “I completely understand the pushback” against the federal vaccine mandate she promised the administration would never impose.
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