Happy Monday morning to all my beautiful babies. I took an extended layoff following the normal end-of-August slowdown and Labor Day, but now we are about to get nuts. This will probably be a longer Jackal, so I wanted to break it down for all the Enneagram 1s out there in case you just want to skip to the interesting parts:
Biden’s Vaccine Mandate.
a. Is it legal?
The Texas abortion case.
Governor Newsom’s (highly unlikely) recall.
Biden’s Vaccine Mandate
On Thursday, Biden made a pretty big announcement (and major shift in strategy): He was using the power of the Executive branch to compel private companies with 100 employees or more to mandate that their employees get vaccinated, or subject themselves to weekly testing.
For many of Biden’s critics on COVID-19, it was welcome news; behind the scenes many people on the Left had been pushing the Administration to get more heavy-handed when it came to their vaccination strategy. After the U.S. began averaging around 1,500 deaths a day (again) in early September, the Administration finally decided to shift course.
The lead-up to any discussion of the mandate should be this video from the New York Times, “Dying in the Name of Vaccine Freedom.”
The person who stood out to me the most from the video was Christopher Green:
“Christopher Green is 53 years old and fighting for his life. Like 90% of the patients in this packed hospital, he’s unvaccinated.”
When Green was asked why he didn’t get vaccinated, Green replied with the most dreaded words known to mankind:
“I’m more of a libertarian and I don’t like being told what I have to do.”
By the time you get to the end of the video, you are told that Green did not survive his bout with COVID-19, and that he was still hesitant about getting the vaccine, even while he was on his death bed. I have watched this video probably ten times and have allowed myself to get a little sucked into Chris’s life. He was a Christian who attended church services in “Siloam Fellowship Church in Mountain View, Arkansas, and Second Baptist Church in Conway, Arkansas.” He is survived by his two parents, Roy and Garilyn, both of whom have Facebook pages. His Dad’s most recent post is a link to the CDC’s website on the vaccines. My heart breaks for these people, who just had to bury their son. They have a beautiful, typically kind and gentle Arkansas family that spends a lot of time together, and their world is now forever altered.
While it is true that America has always had a more independent and individualistic spirit, it shouldn’t be confused with the attitudes of a lot of anti-vaxxers today, which is more akin to “infantilism” than anything else. Throughout the 20th Century, the libertarian movement basically coopted and distorted American history, and retconned every single Founding Father into William Wallace shouting FREEDOM into the ether. It is total and complete nonsense, given that the Founding Fathers:
Believed in vaccine mandates. George Washington somewhat famously forced his soldiers to get inoculated against Smallpox (a process similar to vaccination only it was way worse). He later wrote to his brother: “I would rather move for a Law to compell the Masters of Families to inoculate every Child born within a certain limitted time under severe Penalties.” [sic, but only sort of, because the Founders had some bonkers rules about spelling.]
They loved taxing people. Washington famously rode with a small army to Western Pennsylvania to put down a rebellion that refused to pay Alexander Hamilton’s infamous “whiskey tax.”
They regulated free speech. John Adams signed the Alien and Sedition Acts into law while he was President, which literally made it a crime to make false statements about the Federal government. Parts of it are still law today!
To be clear, I like FREEDOM, even the William Wallace kind, and I think the government should, generally, stay out of the lives of normal people and allow them to enjoy the Joy of America™. But the notion that even a push from the Federal government to get your jab is a violation of your “freedom” is inconsistent America’s vision of liberty. The Founders believed in the concept of good citizenship, where the populace was well-educated and worked towards the “common good,” which was something they talked about a lot.
Logically, a mandate, during a global pandemic would fall into this notion of helping out the “common good.” Conservatives actually used to understand this point, and wrote pretty convincing pieces about it. I want to highlight two pieces from around 2015, both written by prominent conservatives who understood the moral/common good of mandating vaccines:
The point of mandatory vaccinations is not merely to protect those who are vaccinated. When it comes to measles, mumps and rubella, for example, children cannot be vaccinated until 1 year of age. The only way to prevent them from getting diseases is to ensure that those who surround them do not have those diseases. The same is true for children with diseases like leukemia, as well as pregnant women. Herd immunity is designed to protect third parties. But Americans have short memories and enormous confidence in junk science. Parents will ignore vaccinations but ensure that their kids are stocked up with the latest homeopathic remedies, Kabbalah bracelets and crystals. St. John's wort, red string and crystals all existed before 1962. They didn't stop the measles. Vaccination did.
Sign me up for that. Another from 2015:
But vaccination is not about protecting the vaccinated so much as it is about protecting others from disease-carriers. Vaccines are properly understood not on the basis of narrow self-interest but as a defense of the human species. Fundamentally, the protection against life-threatening plague is one of the original reasons government exists. We’ve had mandatory vaccines for schoolchildren in America since before the Emancipation Proclamation. The Supreme Court has upheld that practice as constitutional for over a century, and only the political fringes believe there ought to be a debate about such matters. This is one of the few areas where government necessarily exercises power. […] If you choose to not vaccinate your children, that is your choice. In the absence of an immediate threat, such as a life-threatening plague or outbreak, the state doesn’t have a compelling reason to administer that vaccination by force or to infringe on your rights. But that doesn’t mean there are no tradeoffs for such a decision. If you choose not to vaccinate, private and public institutions should be able to discriminate on that basis. Disneyland should be able to require proof of vaccination as a condition of entry, and so should public schools.
I will 100% drink that milkshake. Both of these pieces are excellent in their descriptions of the need for mandatory vaccinations. Here’s the kicker, the first one I cited to was written by Ben Shapiro, who said this on Thursday:
The second piece was written by Ben Domenech, co-founder of the Federalist and current Fox News host. Here’s how his website now feels about the vaccine mandates:
Here’s what he said about “vaccine passports” (less intrusive than a mandate):
So, what made these guys change their minds? You see, way back in 2015, the anti-vaccination movement was primarily an issue on the Left. Shapiro even says it in his piece, as he highlights that, “the most organized anti-vaccination resistance comes from the New Agey left in places like Santa Monica and Marin County, who worry more about infinitesimal amounts of formaldehyde in vaccines than about death by polio.”
Domenech makes the same point:
The problem has been the growth of those opting out of vaccination, not due to deeply held religious beliefs or legitimate medical problems or impoverished and irresponsible parents, but because of other concerns. It’s telling that refusing to get your kids vaccinated is the trendy thing among the California elite, even as they decline to embrace other aspects of the Amish lifestyle. Or the Jenny McCarthy lifestyle, for that matter.
It’s actually pretty simple: The reason conservatives used to favor vaccine mandates is because they thought it was something that would “own the libs.” Now that the median unvaccinated person in America is a Republican Trump voter, mandates are “fascist” and “tyrannical.”
Some of us, of course, have been consistent:
Mandatory vaccines will, surely, be met with resistance and more than a little complaining. But Chris Green worked as a tech salesman, and if his company had more than 100 employees, he would have had to choose between keeping his job and getting vaccinated. If Biden’s mandate had been in place earlier this year, there is a chance Chris Green would have made the choice to get vaccinated and he would still be alive. That’s why the mandates are important.
Is this Shit Even Legal?
If you want a quick summary about the legality of Biden’s vaccine mandate, I will just say this: His policy has substantial backing in both case law and in court history. Courts have upheld similar rules before, and they’d have to do a U-turn on a lot of their previous decisions, but that doesn’t mean they won’t.
The Biden Administration put out this quick note about the basis for their vaccination plan. They said:
The Department of Labor’s 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. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
OSHA has been passing these sort of rules during the pandemic for a while. Here is one of their notices from back in July, where they enacted changes to health care facilities regarding COVID-19 testing and prevention.
We are really getting into the weeds of the Administrative State here, but when a federal administrative agency proposes a change to their rules, they usually follow the same process:
Publicly propose the rule in the Federal Register.
Give the public time to comment on the rule changes.
Respond to public comments about the rule changes.
Ultimately make the proposed rule change.
These are published in the Federal Register all the time. You can actually go to the Federal Register for today and see that there are three proposed rule changes in the current issue. There are changes proposed for federal travel regulation and, most importantly, the Fisheries of the Northeastern United States. This is thrilling stuff.
What’s happening here is that OSHA is bypassing that requirement under the “grave danger” standard outlined in a currently active ETS. This could be a possible avenue for a legal challenge, HOWEVER, the last successful challenge to this was in 1983, when a Court ruled that an OSHA rule that limited asbestos in a workplace (!) did not meet the “grave danger” standard because OSHA didn’t explain why the rule would even be effective. To put it simply, it is going to be extremely hard to argue that COVID-19 is not a “grave danger” and that vaccinating employees will not be effective in curbing COVID-19.
There have been predictable criticisms of this move, from a lot of the same, silly places:
The Associated Press @APBREAKING: President Joe Biden to mandate all employers with more than 100 workers require COVID vaccinations or weekly virus tests. The new requirements would affect as many as 100 million people. https://t.co/aouKyBx5aA
If you are confused about how Congress (which passed the Occupational Health and Safety Act, creating OSHA) passes laws which allow the Executive branch to enact Regulations, - which is done in every administrative agency, from Social Security to Fisheries - it’s time to re-watch Schoolhouse Rock. Is it entirely possible that Courts will overturn 51 years of law to strike down Biden’s vaccine mandate? Yes. But they would be wrong.
The core argument for Biden’s mandate goes back a lot further than the creation of OSHA. After Thursday, you probably heard a lot of people talking about Jacobsen v. Massachusetts, a case that upheld the city of Cambridge’s decision to fine a man (about $143 in today’s dollars) who refused to get the Smallpox vaccine. If you follow me on Twitter, you have probably seen me making allusions to it:
Derek Thompson @DKThompOne-third of Americans say they "probably" or "definitely" won't get the vaccine, including: - 40% percent of ppl <45 - 40% of non-college Americans - 44% of Republicans https://t.co/Y759wWJ60l America's vaccine supply crisis is about 3 months from becoming a demand crisis
In Jacobsen (which was written by the famous Dred Scott dissenter, John Marshall Harlan), the Court did their best imitation of Ben Shapiro and Ben Domenech, circa 2015:
The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.
The Court specifically stated that it was “within the police power of a State to enact a compulsory vaccination law.” Pretty badass. And for anyone who says, “WELL THEY ARE TALKING ABOUT THE STATES,” the Court ultimately held that Cambridge’s compulsory vaccination laws were Constitutional under the 14th Amendment, which, you know, applies everywhere.
All in all, Biden’s proposed rule change - which does not even mandate vaccines - has a solid legal footing to stand on. Will a more conservative Supreme Court overturn it? Possibly. Until then, whenever you meet someone who is against the mandate and works for a big company, just simply say, “Enjoy your weekly tests.”
Is Texas for Real???
There has been a lot written about Texas’s abortion law, which relies on private citizens to report anyone they know who is having an abortion or abetting an abortion. If they do so, they get $10,000. An actual, plausible scenario that could happen under this law: A man gets his 17 year-old niece pregnant; tells his sister/her mother; they attempt to get an abortion; he reports the Mother (the actual woman seeking the abortion cannot be the subject) and gets $10,000. It is a bonkers, insane law, that does incredible disservice to the pro-life movement. Mona Charen has a great piece on this:
To achieve a temporary halt on abortions, Gov. Greg Abbott and the Republicans in Texas’s legislature have demonstrated contempt for any value other than hamstringing review. Do the drafters and Republican lawmakers who adopted this law really want to invite the kind of spying and informing their law envisions? Do they really want bounty-hunters to enrich themselves on the backs of women in trouble? Do they want to burden Texas courts with heaps of abortion suits? Do they really want to make Texas look like East Germany?
That said, the Supreme Court’s action (or lack thereof) in the Texas case is ultimately correct. The law - which is cleverly written - does not involve public officials, so there is actually no one to sue, which is why the Supreme Court dismissed the legal challenge on procedural grounds. In all likelihood, when an actual case is brought before them the Supreme Court will strike it down and it won’t be close. But just because legislators got sneaky with the way a law was written does not mean 200+ year-old legal procedures should magically change. If you want to listen to someone who disagrees with me, Emily Bazelon does so on Slate’s Political Gabfest, but her argument is essentially, “The Supreme Court could stop this law if they wanted to,” which is an argument for them stopping any law, anywhere, for any reason.
Is Newsom Doomed?
Nope. In fact, polls have recently shown that Newsom is going to be pretty safe, and some have even shown him exceeding his win in 2018. If you’ll recall, earlier in the summer Democrats were slightly panicking due to some of the poor polling numbers. So, what happened? Basically, people started paying attention. Another thing that helped: Newsom found out that Donald Trump - even out of office - still drives up Democratic turnout. For him to lose, he’d need a massive polling error, bigger than the ones we got in 2016 and 2020.
I have sent this Tim Alberta piece on 9.11 to just about everyone.
Guess who was helping out Jeffrey Epstein before he got locked up? Steve Bannon.
Everyone loves Chris White. Read his piece on 9.11 and Pope Francis.
One more Jackal before I take a paternity break (don’t worry, there are guest writers coming!). I’ll see you all next week.