10 Reasons Why Biden's Federal Vaccine Mandate Is Problematic

President Biden's patience is running thin with this pandemic. Biden wants to play hard ball, which is why last Thursday, he announced an emergency rule for businesses with over 100 employees. The rule states that either an employee is to be fully vaccinated or has to procure a negative COVID test once a week to prove they are not a threat in terms of COVID transmission. Each infraction of this rule would result in a $14,000 fine for the employer. Instead of using the carrot, Biden thinks that using the stick will persuade the remainder of the unvaccinated to get vaccinated. I have written about vaccine mandates twice this year (see here and here), and I am unconvinced that Biden's latest mandate is a good idea for ten reasons:

1. Biden's rationale for the mandate is faulty. Biden said that the bottom line of this mandate was that "we're going to protect vaccinated workers from unvaccinated workers." Biden also claims that vaccines are safe and effective. Which is it: do vaccines work or do they not? According to CDC data, vaccination means one is 4.5 times less likely to get infected, 10 times less likely to get hospitalized, and 11 times less likely to die from the Delta variant (Scobie et al., 2021). The Right-leaning Heritage Foundation released a study analyzing the probability of COVID breakthrough cases and deaths (Dayaratna and Michel, 2021). One of their findings is that if vaccinated, you are more likely to die from a bee sting than you are to die of COVID. Another is a reminder that dying from COVID is still very low. Biden is correct to say that vaccines are safe and effective. What is nonsensical is saying that you need to force the unvaccinated to take the vaccine in order to protect the vaccinated. The vaccine is what protects the vaccinated. After all, that is why we have the vaccines. 
2. The negative externality argument does not hold anymore. To quote my public policy textbook from graduate school, an externality is "any valued impact resulting from any action that affects someone who did not fully consent to it through participation in voluntary exchange." At the beginning of the pandemic, we did not have a way to protect ourselves from COVID. Mask usage was prevalent and counterproductive lockdowns were implemented. That was then, and this is now. We are in the stage of the pandemic in which there is readily available access [in the United States] to vaccines. If anything, access to those vaccines should be construed as a positive externality. As such, the risk to COVID becomes more individualized. If you want to risk getting COVID and do not want to get the vaccine, that choice [almost exclusively] directly affects you.
• "Think of the children." This argument has been used in attempts to justify ill-advised policies, including banning same-sex adoptions, school closures during the pandemic, or funding universal preschool. The argument is being used again. But how deadly is COVID for children? According to CDC data released this month, there have been eight (yes, you read that right....eight!) in-hospital COVID-19-related deaths in persons between the age of 0 and 17 from August 2020 to August 2021 (Siegel et al., 2021). As for total deaths (as opposed to in-hospital), that number is 516 since the beginning of the pandemic, as of September 11, 2021 (CDC). Out of millions of children in the U.S., fewer than a thousand children have died. Even with the Delta variant, children are at a low risk to COVID. There were 1,800 children that died from H1N1, yet we did not have the same level of hysteria during the 2009 swine flu pandemic. 
• What about the immunocompromised? The immunocompromised account for 2.7 percent of the population. A subset of the immunocompromised are unable to take the COVID vaccine. It stands to reason that the immunocompromised are going to be the most cautious for the longest, even after we reach a certain percentage of the vaccinated or after the pandemic is declared over. While we should make sure the immunocompromised receive adequate protection, it still would be the case that the immunocompromised being extra cautious is a sunk cost. 
3. How effective will the vaccine mandate be? As I brought up a couple of months ago, those who have wanted the vaccine, by and large have gotten it. As of September 14, 75.8 percent of Americans have had at least one dose, according to CDC data. Earlier in the pandemic, there was a fair split between those who were hesitant and those who simply did not want the vaccine. At this juncture, the majority of those who have not received the vaccine are the most skeptical of the vaccine. I am skeptical as to whether a mandate would compel the unvaccinated to get vaccinated. If the less cumbersome act of wearing a mask has become such a political symbol for many of the unvaccinated, what makes you think that you can force these individuals to get a vaccine? Polling data from CNBC/Change Research from August 30 to September 2 found that 87 percent of the unvaccinated would not get a vaccinate if their employer mandated them. If these polling data are close enough to portraying an accurate picture of the unvaccinated, it means that Biden's mandate will have little effect on herd immunity. 
4. Unintended consequences of the mandate. We can get into enforceability or cost of enforcement, a cost which remains unseen. Let's get into another point: the extent of the mandate's impact will depend upon how the unvaccinated will react. There are four main possible reactions of the unvaccinated employee: get a vaccine, fraudulently acquire a vaccine card, undergo the weekly testing, or quit your job. We do not have a crystal ball, but if the aforementioned polling data is any indication, a large majority of unvaccinated will not get vaccinated because their employer mandates it. Let us cover the two legal options since I am staunchly opposed to fraud.
• Weekly testing. If most of the unvaccinated opt for this route, it will not only create a regulatory burden for the employer, but it could also limit the supply of COVID tests. Assuming a cost of $100 per test and at least 25 million employees would need a weekly test, this can cost millions per annum.
• 11/4/2021 Addendum: The American Action Forum calculated what Biden's vaccination would cost. In total, the estimation is $3 billion within the first six months.
• Unemployment. If the mandate creates such an adverse reaction in which the unvaccinated would rather leave their job than take the vaccine, this could create a ripple effect in the labor market and undermine the economic recovery. It could also put a strain on government spending since it would mean more recipients of unemployment insurance and other welfare benefits. 
5. Ignoring the role of natural immunity. This gets into some murky territory since this topic has been hotly debated. However, there is more evidence coming in that natural immunity can provide considerable protection from COVID. Researchers at Washington University found that natural immunity could last four to eleven months (Turner et al., 2021). A recent large-scale, peer-reviewed study from Israel went as far as finding that natural immunity is thirteen times more effective than vaccine immunity (Gazit et al., 2021). Natural immunity has been shown to be effective for other diseases, but I think vaccination is a good idea because vaccination has helped greatly mitigate the spread of diseases in the past. At the same time, natural immunity contributes to overall herd immunity. Ignoring natural immunity overstates the problem, thereby diminishing the argument for Biden's vaccine mandate. 
6. Can the federal government impose the mandate with current law? Biden intends to implement his "Emergency Test Standard" (ETS) through the Occupational Safety and Health Administration (OSHA). Under the OSHA Act of 1970, OSHA can determine "that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physical harmful or from new hazards." Let's forget that ETSs have not been used since 1983 or that six out of nine ETSs that have been implemented have been shot down by the courts either partially or completely. The wording of the Act implies that it would only cover exposure to chemicals on the job, and very well might not apply to a vaccine mandate. 
7. Constitutionality. I will ultimately leave this to constitutional law experts, but I will say that this ruling presents a problem for separation of powers and for those who believe in representative government. Article I, Section I of the Constitution clearly states that legislation is to be created by Congress. The problem with the executive branch trying to exert too much power is not unique to the Biden Administration. It goes further back than Presidents Obama or Trump. FDR and Lincoln were also known to overreach beyond their constitutionally stated powers. The fact that congressional members on both sides did not want to enact a vaccine mandate should tell you something. In any case, I expect a lot of litigation in response to the mandate.   
8. Biden's take on freedom. In his remarks last Thursday, Biden said that "this is not about freedom or personal choice." Well, that much is obvious. The premise behind a free society is that we get to make choices about our own lives and our own bodies as long as those choices do not directly harm others. There are multiple choices related to health that could shorten one's lifespan but many Americans do anyways. We don't ban alcohol, mandate exercise, or force people to eat five servings of fruits and vegetables even though those would be healthier life decisions. More to the point, forcing someone else to inject a vaccine they do not want cannot be justified under a doctrine of self-defense since it is unclear as to whether that individual will directly be responsible for disease transmission. None of this gets into natural immunity or herd immunity contribute to fighting disease burden. As I brought up in Point #2, the risk of not vaccinating is primarily on the individual level. If "my body, my choice" is to mean anything, a vaccine is a good litmus test. 
9. Biden's vaccine mandate will not stop COVID. What is implicit with such policies is that if we get enough people vaccinated, we will be rid of COVID. The idea that we can get rid of COVID, i.e., zero-COVID, is a delusion. For one, the only human-borne illness we have eradicated is smallpox. Two, the rate of transmission with the Delta variant is so high (somewhere between 5 and 9) where we would need about 90 percent of the population with some form of immunity in order to reach herd immunity. Third, let's remind ourselves where the prominent variants came from. The beta variant came from South Africa, the Delta variant from India, and the Lambda variant in Peru. Getting a few more people vaccinated does not negate the fact that there are millions in the rest of the world that need to be vaccinated. Instead of thinking COVID is going away, we need to focus on harm reduction and learning to live with COVID.
10. Biden's executive order continues to erode trust in the government. Shortly after being elected President, Biden said in December 2020 that there would be no federal vaccine mandate, saying that "I wouldn't demand that it be mandatory." In July 2021, White House Press Secretary Jen Psaki said that vaccine mandates are not the role of the federal government, but something private entities could do if they so desired (I happen to agree since businesses already impose other requirements as part of employment). At the end of July, CDC Director Rochelle Walensky said there would be no federal mandate. It did not take even two months after Walensky's promise that we would not have a mandate, and we now have a federal vaccine mandate. How can we trust the Biden administration when they say one thing and do another? Sadly, this mixed messaging from the federal government has been taking place throughout the pandemic. While the Trump administration was also responsible for mixed messaging, the Biden administration is not doing any favors in terms of being able to bring the country together. 

Conclusion: Vaccines are the single greatest tool we have at reducing the harm caused by COVID. While I agree with the importance of vaccination, Biden's vaccine mandate has problems, whether ethical, constitutional, or especially consequential. As CNN brought up in a recent article, if facts will not convince the unvaccinated, coercion certainly will not. By showing understanding the unvaccinated individuals' concerns and convincing them to get vaccinated willingly, we can bring an end to the pandemic more efficiently than Biden's vaccine mandate will.