Some, like doctor and medical historian Howard Markel applauded the aggressive step:
“I’m very frustrated we have less than 70% fully immunized and perhaps these mandates will help.”
But other public health experts aren’t sure it will help.
“The best way to move the needle on vaccine hesitancy is toward increasing agency, not taking agency away from people," Nita Farahany says.
Big government mandates and smart public health decisions. Do the two meet in Biden's new COVID plan?
Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law. Author of the forthcoming book “Global Health Security: A Blueprint for the Future." (@LawrenceGostin)
Howard Markel, professor and director of the Center for the History of Medicine at the University of Michigan.
Tom Young, founder and brewmaster at Great Basin Brewing Co. in Nevada.
Are vaccine mandates a legal exercise of federal power?
Nita Farahany: “That's the important part, the word federal there, right? So there's certainly ample precedence for the exercise of state and localities implementing vaccine mandates. In fact, we have plenty of them at the state and local levels for childhood vaccinations, and for other purposes. But there is no precedent on point that I'm aware of for a federal mandate, nor any precedent for the legal right of the federal government to reach into every state and to require citizens of those states to become vaccinated.
"I wish there were. I think it would be great in some ways. I mean, not really, because it creates a lot of complications. Especially if there's some policy I don't like that's being handed down at the federal level. In this instance, I wish it were true that we could somehow force everybody to get vaccinated. But that's not going to get us out of the pandemic, and that's not the right answer here.”
Why do you think it's not the right way to get out of the pandemic?
Nita Farahany: "It's absolutely true that the federal government has power. And it has power that it can exercise in the states through its power of interstate commerce. And one of the clever things about this particular approach was to try to say, Hey, if you're an employer with more than 100 employees and trying to exercise this through OSHA, that this is what the standard of workplace safety would require. This is what the standard is ... that everybody has to get vaccinated.
"The difference is and of course, let's be clear, it's not that everybody has to get vaccinated. It's that employers who have more than 100 employees either have to require vaccination or regular testing. And so there is an alternative that's offered as well. The problem is we don't have any precedence of reaching in and affecting individual citizens. This is a reach through from the federal government, through employers to require individuals do something.
"And that individuals do something is to do something that they may not otherwise consent to. Or they may not otherwise wish to do, which is to get vaccinated. That ... kind of public health decision making is something that's as between the power — between the federal government and the states — is delegated to the states, and is generally exercised by the states recognizing that there may be differences state by state or community by community as to what makes the most sense for public health policies at those levels.
"So it's creative. It's going to be litigated. It is unprecedented. And maybe there will be some courts that uphold it at the federal level, given the alternative that's being offered of testing or vaccination. But I'd be very surprised if at the end of the day, this is a policy that stands the test of constitutionality."
Is there an argument to say that in the United States, because of how health care is done, the workplace is the best place for such a mandate?
Lawrence Gostin: "We're virtually unique in the United States that we organize our health coverage at the employer level. That doesn't meet the legal argument though. Let me just try to take a step back. Howard Markel, a very good friend, talked about Jacobson v. Massachusetts in 1995. Jacobson gives a broad right and power of the states and the cities to mandate vaccines. But it's a wide misconception in the United States that it gives the federal government that right.
"But I do think that President Biden is actually on rock solid legal ground. And he is because he's acting at the very height of presidential power. He's not acting unilaterally. He's acting through a specific and clear delegation of authority from the Congress of the United States. In 1970, the Congress passed the Occupational Safety and Health Act. And it did so because there was a weak patchwork of state laws that were making it hard to have workplace safety.
"And so it gave the president power to set national uniform standards through the Department of Labor. That's what he's doing here. And I should just say one thing. People say an infectious disease is different than a workplace injury. But the truth is that the threat that the Delta variant places in a crowded workspace is every bit as great as the threat of a workplace injury. And probably much greater."
What is the best strategy right now?
Nita Farahany: “Our best strategy is to try to work on trust in the individuals who are not vaccinated. Not by forcing them to become vaccinated, but by getting out into communities, by getting out into community leaders with whom they relate, and providing them with the best possible information. We need to flood the markets with accurate information to counter misinformation, and disinformation. And restore trust and public health agencies in order to encourage vaccine hesitant individuals to get vaccinated. It's our best way out of the pandemic. It's the best way for people to protect themselves, and it's the best way for people to protect others. A mandate by the federal government will backfire and will prevent that kind of restoration of trust that is critical to getting us out of this mess.”
Lawrence Gostin: “It's clear from a public health point of view that we need to have layered precautions. As much vaccination as we can. ... We should have universal masking. We should be outdoors and ventilated as much as we can. And we should test frequently to identify infection and isolate and quarantine. That is the kind of layered approach that will get us out of this. Public trust is extraordinarily important. And we need to have better health communication in the United States. And it hasn't been what it should be, but it can be.”
This program aired on September 15, 2021.