The Biden Administration last week proposed to use a workplace safety statute to mandate vaccines for the majority of private-sector employees. The actual agency regulation isn’t ready for primetime, and won’t be for a bit—a fact that suggests to me, having worked in the White House for four years, that lawyers in the administration know the order is legally problematic. Nevertheless, the President announced it early to change the news cycle.
The proposal is an aggressive move, divorced from the types of issues that the Occupational Health & Safety Act (”OSHA”) was designed to address. As industrial production grew after the second world war, health risks at industrial plants increased as well. The new work environment involved new and potentially dangerous chemicals. For example, uranium miners were developing lung cancer, and this concerning fact supported the narrative that the federal government should set some federal exposure “standards” governing an employee’s contact with hazardous substances in the workplace. President Lyndon Johnson recognized these risks, and championed OSHA, arguing that, “the time has … come to do something about the effects of a workingman’s job on his health.”
Whether OSHA is itself an unconstitutional overreach remains a subject of much debate. But Biden’s unilateral extension of it certainly is. In announcing his proposal, the President promised to “protect vaccinated workers from unvaccinated co-workers.” This flips OSHA on its head: Instead of protecting workers from dangerous jobs, the President seeks to use OSHA to protect the workers from each other. Of course, Biden acknowledged that vaccinated workers are not at risk: only one in 160,000 patients hospitalized with COVID-19 has been vaccinated. So this isn’t about the effect of COVID on the job site. The interest is now the workingman’s health, period.
Polling suggests that 58 percent of Americans are okay with Biden’s vaccine mandate. They’re probably vaccinated and don’t care. I get that, and for a while, I felt similarly. But think about the precedent. If the federal government can mandate workplace safety standards that determine whether you pose a risk to your co-workers, what are the limits? Can the government forbid workers from attending major gatherings? Can it require you to wear a mask when not at work? Can it prohibit you from caring for sick dependents? From traveling? Or else? You don’t work.
And why end at the workplace? How different, really, is a vaccine mandate—which protects you and your community’s hospital bed capacity—from a birth control mandate? We have a birth control shot. It’s called Depo-Provera, and it’s required 4 times per year to be effective. It’s FDA approved and can be administered to prevent unwanted pregnancies, which do cost taxpayers billions of dollars per year. Surely unwanted pregnancy presents a public health crisis under today’s definition. Not only does child-birth take up hospital beds, but many children born in unwanted situations suffer from hunger, a lack of healthcare, homelessness, and more.
But that’s an incursion on liberty! I have the right to have children!
According to who? That right has been stripped in other countries; one need only look to China’s one- to two-child policy to understand that our liberties should not be taken for granted. Lovers of liberty, conservative and liberal alike, in our hearts believe there is a “personal sphere” line that no government may cross. But that line doesn’t exist in the ether. It must be articulated, cared for, and defended time and time again.
This is about standing guard of our liberties, not about whether a vaccine is good or bad. For millions of adults, it makes logical sense to take the vaccine. But by ripping choice away and berating Americans for lacking common sense—rather than appealing to facts and reason—the government threatens liberty. Our Founders knew this would happen, so they gave the nation to us, the People, to safeguard it. Not to bureaucrats. Not to kings. Not to judges. To us. So whether or not you get vaccinated, define that liberty and let it thrive in your heart. It’s what keeps us free.