Vaccine Mandates: The End of Covid? Or the Beginning of Tyranny?

A Harvard law professor, a leading critic of the War on Terror, a rising GOP star and others weigh in.

Several thousand protestors opposed to the COVID-19 vaccine and any mandates from the government to take it march through midtown Manhattan on September 18, 2021. (Andrew Lichtenstein/Corbis via Getty Images)

Between Gavin Newsom’s feast at the French Laundry and Barack Obama’s birthday bash on the Vineyard, one could be forgiven for thinking we had already witnessed the purest form of chutzpah from our political class.

Then came last week.

There was AOC working the red carpet at the Met Gala. There was this instantly iconic image of Carolyn Maloney smiling wide for the camera while masked attendants looked on. And most delicious of all was San Francisco Mayor London Breed, who, when confronted about partying maskless in a packed jazz club, responded by explaining: “I was feeling the spirit and I wasn’t thinking about a mask.” 

She says this while children in her state are forced to wear masks at school all day. Including kindergartners.

It feels like a gulf has opened up between those inside the castle and everyone else. The people who still play by their rules are increasingly wondering what’s going on, and whether they will ever get to experience the back-to-normalcy that increasingly appears to be a privilege of public service.

Our political leaders’ hypocrisy certainly doesn't help their effort to sell public-health restrictions. Why must their constituents follow the rules they so easily and regularly flout?

More specifically, this leads to prudential questions, such as: are vaccine passports an obvious and ethical measure to protect our public health? Or are they a worrisome infringement on our personal liberty and perhaps a slippery slope toward a social credit system? Is President Biden’s new vaccine mandate, which will affect some 100 million Americans, sound policy? Or, as some Republicans have claimed, unconstitutional? 

I enlisted medical experts (Sally Satel); public-health experts (Dr. Jay Bhattacharya); legal scholars (Adrian Vermeule); civil libertarians (Glenn Greenwald); public officials (Miami Mayor Francis Suarez); and other respected voices to try to make sense of it all. Some are for the mandates. Others are against them. Still others are somewhere in between. As Josh Szeps writes from Sydney, Australia: “Vaccine passports are a horrendous violation of human rights that no sane society should tolerate. And I support them.”

In the meantime, on today’s podcast, a conversation with one of the contributors below, Dr. Vinay Prasad, about masks, mandates and the state of science:

— BW


This Will Come Back to Haunt Us

By Jay Bhattacharya and Jonathan Ketcham  

Why the push for vaccine passports and mandates? Public health officials have offered one overriding justification: As soon as enough of us are vaccinated, we’ll reach herd immunity and the disease will stop spreading. Vaccine passports and mandates get us there faster.

This is nonsense.

We have good reason to doubt that, if most everyone got vaccinated, we’d achieve herd immunity. That’s because the protection offered by the Covid-19 vaccines against infection is short-lived. A large study of vaccinated patients in Qatar found that, by five months after the second jab, the vaccine’s effectiveness had already started to wane. It continued to protect against severe disease and death, but it did not provide any protection from less severe infection.

In fact, getting Covid and recovering from it is better protection from future reinfection and severe Covid disease than any of the available vaccines. This is clear from an excellent Israeli study

That study, conducted at the Maccabi Healthcare Services, in Tel Aviv, makes clear that it is probably safer to be in a room filled with unvaccinated people who have recovered from Covid than it is to be in a room filled with vaccinated people who have never had Covid.

Now, looking beyond the epidemiology, it’s worth considering the psychology that comes into play when we start forcing people to do things: It is practically a mathematical certainty that the mandates will lead many people to distrust the government, leading experts at places like the Centers for Disease Control, and our most prominent research universities even more than they do now. Why, the thinking goes, are you forcing me to do something that, you insist, is obviously good for me? If it were obviously good for me, you wouldn’t have to force me to do it

The mandates, far from persuading the unvaccinated to fall into line, will further undermine the authority of those pushing them — and, critically, it will make it that much harder to persuade the public to get vaccinated when an even more dangerous pandemic sweeps the globe.

There is a deeper, darker reason for the vaccine mandates. Within each of us, there is a primal urge to avoid infection and shun the infected. This stretches back to the ancient world. Medical students must suppress the urge to shun the infected in order to become good doctors. 

Alas, mandate supporters have succumbed, to an extent, to this urge. They are fueled by it; they fuel it. They are creating, consciously or unconsciously, an outgroup of the unvaccinated — who happen to include a disproportionate number of poor people and minorities. It is awful public policy.

The good news is there is a cheap, easy way for all of us to alleviate our anxiety about the unvaccinated: get vaccinated. That act, after a few months, will not protect others but will continue to protect you against severe Covid, and you will no longer need to worry about the person sneezing next to you.

Jay Bhattacharya is a professor of medicine and director of the Center for Demography and Economics of Health and Aging at Stanford University. Jonathan Ketcham, an economist at Arizona State University, studies the roles of incentives and information in health care markets.

Nurse practitioner Lisa Tran vaccinates Shuq Wu, 91, after finding him in a local park during the opening of a vaccination center in Los Angeles. (Sarah Reingewirtz, Los Angeles Daily News/SCNG)

Biden’s Vaccine Mandate Serves the Common Good

By Adrian Vermeule

I see no objection in principle to the President’s vaccine mandate, as a matter of political morality. The highest aim of just government is to promote the common good, and that surely includes, at minimum, our health, safety and well-being as a community. 

The libertarian view is that the rights of the individual must not be sacrificed to the interests of the collective. But that is entirely the wrong picture of how rights work. The common good does not “override” individual rights. Rather the common good determines the boundaries of those rights from the beginning since, in the end, the goods of individual and family life can only be enjoyed in a healthy and flourishing polity. The common good is itself the highest good of individuals.

Even our physical liberties are rightly ordered to the common good of the community when necessary. Just ask those drafted for military service in a national emergency. Our economic liberties can also be subordinated to the common good: consider those whose property is destroyed by the government to prevent the spread of a fire. Covid-19 is like a spreading wildfire, and the vaccine mandate is analogous in principle to such crisis measures. Our health, our lives and our prosperity, are intertwined in ways that make it entirely legitimate to enforce precautions against lethal disease — even upon objectors.

If there is no valid objection from political morality, what of legal or prudential objections? If the vaccine mandate violated indisputably clear constitutional or statutory limits on presidential authority, or if it were legally irrational (“arbitrary and capricious”), then it should fall. Yet I am skeptical of these claims. 

The principles of political morality I have mentioned are themselves part of the law’s fabric, and should be brought to bear in the interpretation of executive authority. The relevant legal materials are capacious and, in places, vague. They can and should be interpreted to allow the President and his agents broad leeway to act, and to act swiftly. In a 1905 decision, Jacobson v. Massachusetts, the Supreme Court sustained mandatory vaccination in the face of a smallpox outbreak in Cambridge, Massachusetts. The Court was emphatic: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” When the “paramount necessity” of defending the community is at issue, our law has always taken a flexible approach to executive power.

In the end, the hard questions about the vaccine mandate are strictly pragmatic. Is the mandate really necessary? Are there feasible alternatives? Might the mandate possibly turn out to be counterproductive, resulting in fewer vaccinations overall than other approaches would produce? How should the mandate be limited to permit legitimate religious or medical exemptions? I have no firm view on these questions, which lie beyond my competence. But nothing I have seen makes a convincing case that the mandate as such is demonstrably irrational.

In a paradoxical sense, these difficult pragmatic questions are actually easiest for the subjects of the law. I do not have to decide such questions, and I am duty bound — as are we all — to respect the commands of those in authority charged with deciding them, short of flagrant arbitrariness. My first-order judgments may seem sound to me (why wouldn’t they?), but I ought to reflect that my opinions, as such, are insufficient grounds for overriding the presumptively reasonable judgments of the responsible authorities. Especially in an emergency, the individual has no “right” to quarrel with the prudential judgments made by those charged with care of the community, within the scope of their jurisdiction, so long as those judgments are basically rational and in service of the common good.

Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard. 

Protestors opposed to Covid-19 vaccine mandates and vaccine passports by the government rally at City Hall in New York City on August 25, 2021. (Photo by Angela Weiss/AFP via Getty Images)

I Oppose Them for the Same Reasons I Opposed the War on Terror

By Glenn Greenwald

I am not opposed to vaccine passports on principle. I can envision a set of public health circumstances in which they could be justified. But I do not believe that we are even close to those circumstances.

Vaccine passports are a highly coercive measure designed to restrict the freedom of law-abiding citizens who fail to submit to state preferences about their own bodies. They convert what have always been basic rights -- to enter public places, fly, attend public gatherings -- into state-granted privileges one earns through compliance with demands of political officials that one inject substances into one's own body. 

But bodily autonomy is a crucial right. The state should deny it only in the most extreme circumstances (and depending on how vaccine passports are implemented, they may also trample on another cherished value: the right to privacy, by allowing the state or third-party contractors to gather health information about citizens). These extreme circumstances would exist if the unvaccinated endangered large numbers of the vaccinated. But that isn’t the case: Vaccines work. So the only people truly endangered by the unvaccinated are the unvaccinated. 

The key remaining argument for vaccine passports is that there is a group of people who cannot be vaccinated even if they want to be, and are thus endangered by the unvaccinated: namely, children under 12 years of age and adults with health conditions that preclude the vaccine. And this is where my long-standing view about the need to weigh risks against deprivation of rights — which served as the foundation for my opposition to the War on Terror — shapes my position here.

My opposition to the War on Terror was not based on the view that the risk of terrorism was zero. Of course there was a risk. My argument was that the risk was sufficiently small — a U.S. citizen was more likely to die by lightning strike or falling in the bathtub than in a terror attack —  that it was unjustified to deprive people basic rights (due process, privacy, free speech) in order to avert the relatively minimal risk of terrorism. 

The principle at work is the same here. Denial of rights also carries costs, and we should not deprive core rights or radically restructure society (both of which carry high costs) in order to avert low risks.

And the risk is infinitesimal: In the U.S., there are roughly 74 million people under 18. In the last 16 months, 362 have died from COVID. The percentage of Americans incapable of taking the vaccine or for whom the vaccine is ineffective is also extremely small. 

Even if one decides that everything must be done to protect this tiny group of people, vaccine passports would still not be justified given that they make no scientific sense. As the CDC made clear when re-imposing its mask guidelines for vaccinated and unvaccinated people alike, vaccinated people can transmit the Delta variant.

If one were really interested in protecting the small, vulnerable group who cannot take the vaccine, mandatory testing would be far more rational than vaccine passports. Proof of a negative test is far more meaningful than proof of a vaccine, which is why vaccine passports seem to be far more about segregating people based on who is good and who is bad than it is about genuine public health concerns.

Glenn Greenwald is a journalist, an author and a former constitutional lawyer. 


This Will Make Us All Freer

By Sally Satel

I am pro-choice. I strongly oppose taxing e-cigarettes. And I think the companies that developed the Covid-19 vaccines should make a profit.

But I support President Biden’s employer-based vaccine mandate.

How do I square my usual libertarian bias with support for this policy? Because I believe that the relatively minor loss of individual autonomy here will be greatly outweighed by the increase in collective freedom. 

Another way of putting this is to say that members of any group have a duty of easy rescue, as ethicists call it. If you can do something that doesn’t cost you much, and that act greatly helps other people, you have a moral obligation to do it. Getting vaccinated falls into this category. 

Many may not see it this way, of course but that doesn’t relieve them of their duty — a duty that adds to our overall liberty by greatly reducing our fears of illness while increasing the odds that we’ll travel more freely, return to the workplace and, more generally, live fuller lives. This is even truer for the millions of Americans who take immunosuppressant medications (I am in this group) or suffer from cancer or other conditions that preclude an effective response to the vaccine.

For all the good the mandates will accomplish, they will also cause some to dig in. It is these unvaccinated individuals who likely live in communities where the spread of Covid-19 has overwhelmed medical services, put cancer screenings on hold, and led to shortages of doctors and nurses. Local emergency rooms are brimming and ICU beds are full causing others — their neighbors — to suffer or even die. (For more on this, see here and here.) Many of the unvaccinated seem to have forgotten the all-important moral axiom that no one has a right to infect others.

Of course, coercive measures should be a last resort. The preferred order of intervention is education, then persuasion, then incentivization, and, finally, coercion. That said, the new mandates offer the hope of greater overall liberty and are therefore justified.

Sally Satel is a psychiatrist in Washington, D.C. She is also a fellow at the American Enterprise Institute and a visiting professor at the Vagelos College of Physicians and Surgeons at Columbia University. 

I’m a Doctor. And This Doesn’t Make Sense.

By Vinay Prasad

Do the benefits of mandating that millions of Americans get vaccinated against Covid-19 mostly by threatening them with job loss ​​outweigh the costs? 

To answer that question, let’s start by breaking down the country into six groups:

1. The Already Vaccinated. Nearly 65 percent of the country has had at least one shot. Mandates won’t affect them because they’re already (or soon to be) protected by the vaccine.

2. The About-to-Get-Vaccinated Anyway. People get vaccinated every day. Even without the mandates, there were those who were planning, before the mandates were announced, to get vaccinated. Then, the mandates were announced, and then, as they had planned, the About-to-Get-Vaccinated-Anyway got vaccinated — creating the false impression that it was the mandates that led them to get the jab.

3. Those Unaffected by the Mandates. This includes retirees and most everyone under 18.

4. The Unvaccinated Who Have Been Infected by and Recovered From Covid-19. Getting these people vaccinated won’t move the needle much when it comes to national infection and mortality rates, since they already have a strong defense against reinfection.

5. Those Who Quit Their Jobs Instead of Getting Vaccinated. A recent Washington Post-ABC News poll found that, of the unvaccinated, 42 percent would quit their jobs if forced to get vaccinated, and 35 percent would ask for a religious exemption.

6. The Unvaccinated Who Are Persuaded to Get Vaccinated. This is the president’s target demographic.

So, is the policy a net win? That depends, to an extent, on whether group six is bigger than group five. 

On top of this, we should bear in mind that the political backlash against this mandate will carry over to future public-health campaigns — which will make it harder, down the road, for the government to cajole Americans into getting boosters.

Okay. So: Is the new Biden policy a good or bad thing?

On balance, I say bad. Here’s why: 

I think the fraction of people in group six will be very small: five percent at most. I think many people who appear to have been pressured to get vaccinated who appear to belong to group six are actually in group two. They would have done it anyway. I’ll concede that group five will likely be much smaller than the polls suggest (two percent or less), but the impact of forcing these people to quit their jobs will be dramatic. They’re sacrificing their future. The socioeconomic toll will be huge, and they’ll be pushed further toward the political fringe.

If we’re just considering the nationwide vaccination rate if we’re just focused on whether group six is bigger than group five — then yes, the policy will be viewed as a success. But if one takes a broader view, one that takes into account the steep price we’ll pay for limited benefit, Biden’s policy will be viewed as a failure.

Vinay Prasad is a hematologist-oncologist and an associate professor of epidemiology and biostatistics at the University of California, San Francisco. 


Mandates Are a Horrendous Violation of My Human Rights. And I Support Them.

By Josh Szeps

Vaccine passports are a horrendous violation of human rights that no sane society should tolerate. And I support them.

Here in Sydney, we’ve been locked down since June. We conquered Covid-19 in May 2020. We erected an Iron Curtain at the ocean’s edge, and an edifice of mass testing and contact tracing to extinguish outbreaks from quarantine hotels.

That worked against the original variant. For 13 months, Sydneysiders cavorted in Covid-free, lockdown-free, mask-free mundanity. While the rest of the world was hunkered inside, I saw “Hamilton” with 2,000 people. The plan was to get everyone vaccinated, and then reopen.

But the government botched vaccine procurement. It nickel-and-dimed Pfizer at early meetings; touted Australia’s domestic production of non-MRNA vaccines like AstraZeneca (which turned out to have a rare, blood-clotting problem that torpedoed its reputation); and didn’t bother to place its Pfizer order until months after other countries had.

Then Delta crashed the party.

Now, we’re stuck at home, and getting jabbed like crazy.

It’s working. The country’s most populous state, New South Wales, has blown past its first-dose target of 80% of the eligible population. Within four weeks, we’ll hit the 70% double-dose threshold that triggers the end of the lockdown. Some Sydney suburbs are above 90% first doses and climbing. 

In a libertarian conception of strictly negative freedom  — that is, freedom from being interfered with —  vaccine passports are an abomination. In such a world, the “freest” outcome is one in which we all eke out an existence like free Hobbits in the Shire of Contagion. But on a social democratic model of positive freedom  — the freedom to achieve outcomes you want —  there’s also value in living without a deadly pathogen.

Australia has lost fewer than 1,200 people to Covid in a nation of 25 million. If we had America’s death rate, we’d be sitting on 50,000 corpses. Australia’s economy has fared better, too. It turns out more people go to bars, cafes and cinemas if it won’t make them sick as a dog for two weeks. In Florida last month, nearly 6,000 people died of Covid. That’s five times more than Australia’s entire coronavirus death toll. 

Vaccine passports save lives, but, truth be told, that’s not why I support them. I support them because I want to go clubbing. I want to go to the movies. I want to sit on a plastic stool in a crowded Asian noodle joint and slurp. I want to do MDMA and make out with a stranger. I don’t want a kabuki dance of disinfectant theater everywhere I go. I don’t want fights over masks. Lockdowns and vaccine requirements suck. But they are worth it if they allow us to be genuinely free.

Josh Szeps is a broadcaster at ABC Radio Sydney and the host of the podcast “Uncomfortable Conversations With Josh Szeps.”

Biden and DeSantis Are Both Getting It Wrong

By Francis Suarez 

I’m against the Biden administration mandating that Americans get vaccinated for the same reason I’m against Florida Governor Ron DeSantis mandating that companies cannot mandate that their employees get vaccinated: I think government should let the private sector decide what works best and get out of the way.

This seems so commonsensical to me. The challenges facing one jurisdiction or community or business are necessarily different from those facing another. While it might make sense for some cities or states to take a tough stance when it comes to vaccines and masks, it doesn’t make sense for Miami, where nearly everyone has had at least one booster shot. Why mandate that anyone should lose their job for not getting vaccinated when almost all of us have already been vaccinated? It just creates confusion and resentment.

The Covid-19 mandates — and the mandates against the mandates — are part of a larger trend in American life that, sadly, has acquired greater momentum during the pandemic: the politicization of everything.

Americans are not an inherently political people. We want our government — at all levels — to provide for basic law and order, to build roads and bridges and, yes, combat disease, and then we expect to get on with the business of living, working, spending time with our families — doing normal, non-political things. That’s how we do it in Miami, and it’s why things are working so well here. While homelessness has soared in places like New York City, Los Angeles and elsewhere, we have sharply reduced it. In an age that is relentlessly focused on the future, Miami has embraced cryptocurrency. This month, we released Miami Coin —  and it has already generated $5 million that is being funneled into city coffers. 

Our politics should be rooted in a faith in ordinary people to run their own lifes and it should be practical. That means flexible. While we hope and pray that we will not see another resurgence of the virus, we know that’s possible. If that comes to pass, it may be necessary to impose a vaccine mandate. But not now. Not when so many of us are already vaccinated and doing everything possible to contain this awful disease. Washington should know better. 

Francis Suarez is the mayor of Miami. 

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