Scott Gottlieb: The federal government shouldn't be dictating vaccine mandates to private businesses

A rare case of a well-known public health expert objecting to a government measure designed to get more people vaccinated. For sound prudential reasons, too: A one-size-fits-all federal policy that requires companies to test unvaccinated employees weekly may be burdensome to some firms. We should let business owners decide for themselves whether to require vaccination based on their particular needs and capabilities, Gottlieb argues. Watch:

Biden’s mandate is legally dubious twice over. First, it’s an attempt to use the Commerce Clause to exercise a police power over public health that the Tenth Amendment grants to the states. (Worse, it’s being shoehorned into the OSHA statute instead of deriving from a discrete act of Congress.) And second, Biden’s interpretation of the OSHA statute doesn’t add up. He said the mandate is needed to protect the vaccinated from the unvaccinated, but the vaccinated are at little risk of severe illness. The truth, which Biden won’t admit, is that the mandate aims to protect the unvaccinated from the consequences of their own poor choices.

Is it a proper exercise of the commerce power to protect people from a risk they’ve willingly assumed?

Maybe the mandate can be reframed as an attempt to protect hospitals from being overwhelmed by the unvaccinated or to protect business owners from having their staff suddenly depleted by outbreaks among unvaccinated workers. Because Americans typically don’t react well when the feds start getting pushy on for-your-own-good grounds.

That said, I think Gottlieb’s wrong when he claims that Biden imposing a vaccine mandate solely for federal employees would have provided enough political cover to convince business owners to do the same with their own workers. Private employers who are thinking of mandating vaccinations for staff have two worries, that their anti-vax employees will leave them for companies with no mandates and that their anti-vax customers will boycott them in protest. A federal vaccine mandate for the federal work force doesn’t solve either of those problems. A federal vaccine mandate for private businesses solves both. Customers can no longer blame business owners for the mandate at their shops. And workers hoping to avoid vaccination now have far fewer attractive employment alternatives.

“A lot of businesses are actually relieved that these [mandates] are going into place. We’ve heard a lot of feedback from the business roundtable and others that this will help us create safer workplaces,” said Vivek Murthy, the surgeon general, in an interview this morning. I believe him. Reporters are hearing from pro-mandate business owners too:

[I]n Houston, where [Bob] Harvey heads the city’s largest business group, employers took the news in stride.

“I have not heard from my members today, which is interesting. I think the reason is what he announced is so in line with the conversations we’ve been having,” Harvey, the chief executive officer of the Greater Houston Partnership, said Friday. “This will come as a relief to the business community, to have an order that requires all of them to move together.”…

In a recent survey, 23 percent of partnership members already required coronavirus vaccines for some or all employees and an additional 30 percent were considering doing so. Of the remaining members that were not, most said they feared that some workers would quit rather than submit.

The president’s blanket order, applying to all companies with at least 100 employees, eliminated that worry, Harvey said.

Biden solved their prisoner’s dilemma for them. His mandate violates the same “my business, my rules” ethic that governors like Ron DeSantis have violated by banning companies from requiring proof of vaccination among customers, but with a twist. Some business owners, possibly most, *want* to impose a vaccine mandate for their workers but lacked the nerve for the reasons I described above. The mandate, ironically, has given them the political cover they need to set the rule they privately favor for their business. And unlike DeSantis’s ban on vaccine passports, Biden’s policy is aimed at encouraging vaccination.

Still, there are plenty of business owners who’ll dislike the mandate because they oppose federal overreach in principle, because the mandate imposes an administrative burden, or because they’re anti-vaxxers themselves. Biden is steamrolling their rights to set the rules for their own businesses.

As for the politics of the mandate, I’ll be watching for how news like this is received:

An upstate New York hospital said it will pause the delivery of babies in two weeks because of a spate of resignations by maternity unit workers who are objecting to COVID-19 vaccination mandates.

Lewis County General Hospital, in Lowville, will temporarily stop delivering babies after Sept. 24, WWNY reported. During a news conference Friday afternoon, Lewis County Health System CEO Gerald Cayer said seven of the 30 hospital workers who resigned were from the hospital’s maternity ward. He added that another seven maternity unit staffers were undecided about getting the vaccine, the television station reported.

Heroic resistance to Biden’s federal overreach? Why, no. The hospital workers in this case resigned because of a state vaccination mandate imposed by New York’s governor, one which is almost certainly legal. And if there’s any industry where the moral and practical case for a vaccine mandate is strong, it’s the hospital industry. If unvaccinated nurses and teachers start walking off the job due to the new federal mandate, who gets most of the blame from the public? Biden, for being imperious in trying to encourage vaccination? Or the workers who walked out, for leaving sick patients and schoolchildren high and dry because they won’t get a fully approved, free, lifesaving shot?

I’ll leave you with a little more from Gottlieb this morning. Exit question: Should Biden have sold his new policy as a vaccine mandate or as a testing mandate? Lefty Matt Yglesias pointed out on Twitter this weekend that Biden’s scheme is essentially just a weekly testing requirement with an opt out for vaccinated workers. If the White House had presented it that way, how much less controversial would it have been?