Challenges mount to president's vaccine mandate

·Senior White House Correspondent
·10 min read

WASHINGTON — First there were culture wars over lockdowns, then over face masks, then over face masks in schools. And even as the pandemic appears to be receding, a culture war over vaccine mandates is showing signs of only growing more intense, with Republican governors and legislators launching challenges to rules that, many public health experts say, could help ensure there is not another coronavirus surge in the future.

Resistance mounted as soon as President Biden rolled out the new mandate on Sept. 9. The mandate, which targets any business with more than 100 employees, is expected to cover some 80 million workers across the country. It won’t go into effect until federal regulators issue a rule, which is expected to happen soon.

Although plenty of Republicans endorse vaccination requirements, some conservatives relished the fight. “See you in court,” Gov. Kristi Noem of South Dakota told the president on Twitter shortly after he announced the mandate. That would be in keeping with how much of the nation’s pandemic response has been hashed out in courtrooms as frequently as in public health laboratories.

Not a week later, Arizona became the first state to sue Biden over the mandate, despite the fact that no rule had yet been formally issued. Two days later, 24 Republican secretaries of state sent Biden a letter claiming the mandate was “disastrous and counterproductive” and that they would “seek every available legal option” to see the forthcoming rule nullified.

South Dakota Gov. Kristi Noem speaks during the Conservative Political Action Conference CPAC held at the Hilton Anatole on July 11, 2021 in Dallas, Texas. (Brandon Bell/Getty Images)
South Dakota Gov. Kristi Noem at the Conservative Political Action Conference on July 11 in Dallas. (Brandon Bell/Getty Images)

Arizona was actually not the first state to fight back against workplace mandates; Montana did before there were any federal mandates. Weeks before Biden made his announcement, state lawmakers in Montana preempted federal action by passing an anti-mandate law that says an employer cannot “refuse employment” or “bar a person from employment” based on vaccination status.

Such resistance has hardly been surprising to the White House. Biden, after all, conducted his campaign during a time of intense divisions over how to handle the pandemic. His opponent, then-President Donald Trump, mocked him for wearing a face mask.

“Vaccination requirements should not be another issue that divides us,” Biden said during remarks from the White House on Thursday, as the Occupational Safety and Health Administration was finalizing the workplace vaccination rule.

But that is precisely what is happening.

In Arkansas, Gov. Asa Hutchinson recently allowed a bill effectively prohibiting employer mandates by allowing opt-outs to become law, even though he declined to sign it. In doing so, he expressed a distaste for both mandates and anti-mandate laws.

“I am opposed to the current mandate by the Biden Administration, but the solution is not to place additional mandates on employers at the state government level,” Hutchinson said in a statement, after letting the anti-mandate bill passed by the legislature languish on his desk for five days, after which it automatically became law. “The solution is not to put employers in a squeeze play between state and federal law.”

U.S. President Joe Biden speaks in the South Court Auditorium on the White House campus October 14, 2021 in Washington, DC. (Drew Angerer/Getty Images)
President Biden in the South Court Auditorium on the White House campus on Thursday. (Drew Angerer/Getty Images)

An administration official told Yahoo News that no squeeze play is at work, because federal law supersedes state law. “Businesses will follow federal requirements,” that official elaborated in a subsequent email, “including in states where leaders are putting forth politically-minded actions that run counter to evidence-based actions like vaccine requirements that are accelerating our path out of the pandemic by boosting vaccinations.”

That “mandates work” has become something of a mantra within the White House. The administration has argued that media coverage of opposition to COVID-19 vaccination can obscure the overwhelming popularity, and efficacy, of vaccine mandates. Arkansas-based Tyson Foods, for example, had vaccinated 91 percent of its employees by the beginning of October. For the most part, resisters constitute a small — if loud — minority, albeit one whose commitment to the cause could present an obstacle difficult to overcome. Biden has joked about the fact that Fox News has a vaccination requirement for all of its employees, including, presumably, the trio of primetime hosts who nightly pump out anti-vaccine messages and who have lionized Republicans for standing up to vaccine requirements.

Constitutionally, the Biden administration is seemingly in good standing. “I think the administration has a good chance of surviving challenges,” says Dorit R. Reiss, an administrative law expert at the University of California, Hastings College of the Law.

That those challenges will come is all but certain, and not just from big-name governors like Greg Abbott of Texas and Ron DeSantis of Florida, who are looking to burnish their credentials with the pro-Trump base as they ponder presidential runs in 2024. A letter from a Tennessee county official shared widely on Twitter told Biden, “Knox County will not comply with your mandate.” If the public health implications of such bluster are potentially disastrous, Biden’s most spirited opponents don’t seem to mind.

The administration isn’t especially worried about a legal challenge from Knox County. The greater concern is that such challenges will multiply, further politicizing the issue of vaccines and prolonging the pandemic for everyone. A number of state and local governments have issued mandates of their own, but when the president embraced the issue himself, he implicitly became the face of every mandate, whether issued in Honolulu or Washington.

Shana Alesi administers a COVID-19 booster vaccine to Marine Corps veteran Bill Fatz at the Edward Hines Jr. VA Hospital on September 24, 2021 in Hines, Illinois. (Scott Olson/Getty Images)
Shana Alesi administers a COVID-19 booster shot to Marine Corps veteran Bill Fatz at the Edward Hines Jr. VA Hospital on Sept. 24 in Hines, Ill. (Scott Olson/Getty Images)

The complex constellation of federal, state and local vaccination rules dims in comparison to Biden’s own mandate for private employers, which covers a quarter of the American population. The mandate also includes employees at hospitals receiving federal assistance. A separate rule targets federal contractors.

Presidential fiat gives the resistance a unifying logic too, effacing the difference between local rules and federal mandates, between what a mayor says and what a president decrees. Biden is now the face of vaccine mandates, including ones he may not have ordered himself.

Even though Trump launched the federal program that led to COVID-19 vaccines, the former president isn’t exactly helping his successor, railing in one press release about how the mandate is “un-American.” But resistance is no longer coming only from predictable figures whose calculations appear to be deeply informed by their own presidential hopes. Earlier this week, Los Angeles County Sheriff Alex Villanueva said he would not enforce a mandate passed by the City Council. Some airline pilots are also fighting mandates imposed ahead of the Biden rule by the airlines they work for.

The timing is tricky for Biden. Even though the Delta-variant-fueled surge of late summer and early fall is subsiding, federal officials remain worried about another surge in the coming months, as people move indoors. “I still think we’ll see a fifth wave as we head into November-December,” Baylor epidemiologist Peter Hotez told Politico this week. “So we’re not done.”

And with only about 66 percent of Americans fully vaccinated, according to the Centers for Disease Control and Prevention, there remains plenty of opportunity for the virus to spread (even if some of the unvaccinated do have natural immunity from having been sickened by COVID-19).

Anti-vaccine protesters stage a protest outside of the San Diego Unified School District office to protest a forced vaccination mandate for students  on September 28, 2021 in San Diego, California. (Sandy Huffaker/Getty Images)
Anti-vaccine protesters outside the San Diego Unified School District office on Sept. 28 in San Diego, Calif. (Sandy Huffaker/Getty Images)

Opponents say they are motivated by a desire to protect civil liberties and individual choice. Declaring himself “offended,” DeSantis has vowed to sue the Biden administration once the new rule takes effect. His state suffered the worst Delta outbreak in the country, with thousands of additional deaths, but the ambitious young governor has continued to reinforce conservative tropes. “I just think it’s fundamentally wrong to be taking people’s jobs away,” he said earlier this week.

DeSantis has already fined Leon County $3.5 million for mandating vaccines for government employees. The governor’s office is also investigating businesses and institutions across the state for checking the vaccination status of either customers or employees.

White House press secretary Jen Psaki described moves like that with a single word earlier this week: “Politics.”

DeSantis press secretary Christina Pushaw told Yahoo News the governor found mandates “unethical” and counterproductive. “Obviously, Governor DeSantis is not anti-vaccine; he is anti-mandate,” Pushaw wrote in an email. “Despite the Biden Administration’s attempts to conflate the two, they are two distinct positions — and Floridians understand that.” (In fact, an August poll found 65 percent of Floridians supporting employee mandates for private businesses.)

Pushaw also noted that Florida’s vaccination rate is higher than the national average. “Forcing people to get vaccinated on penalty of exclusion from society and deprivation of livelihood,” she argued, “is not the same thing as ‘encouragement of vaccination.’”

White House Press Secretary Jen Psaki speaks during the daily briefing at the White House in Washington, DC, on October 14, 2021. (Nicholas Kamm/AFP via Getty Images)
White House press secretary Jen Psaki at the daily briefing at the White House on Thursday. (Nicholas Kamm/AFP via Getty Images)

None of this is especially helpful to the political prospects of a president whose handling of the pandemic is the top factor in how the public views his performance; every additional month it goes on is a blow to his reputation, even if many parts of the pandemic are beyond his control.

Although the Delta surge seemed to have spurred some people to get vaccinated, the torrid pace of last spring has been relegated to a distant memory. “We are now falling behind” parts of Europe, Hemi Tewarson, executive director of the National Academy for State Health Policy, told Yahoo News. She worries about the “fiscal impact” of a stalled vaccination drive.

In speeches throughout late September and early October, Biden lashed out at the unvaccinated, telling them bluntly that they were prolonging the pandemic. “Our patience is wearing thin,” he warned. The mandate for all employers of more than 100 people was an indication of just how thin his patience has grown. Meanwhile, he and his staff lavish praise on corporations that have gone ahead with their own mandates, without waiting for an OSHA rule.

Safeway pharmacist Ashley McGee fills a syringe with the Pfizer COVID-19 booster vaccination at a vaccination booster shot clinic on October 01, 2021 in San Rafael, California. (Justin Sullivan/Getty Images)
Safeway pharmacist Ashley McGee fills a syringe with the Pfizer COVID-19 booster at a vaccination clinic on Oct. 1 in San Rafael, Calif. (Justin Sullivan/Getty Images)

Many of the unvaccinated are political opponents, giving rise to the notion of a “Red Covid,” with counties and states supportive of Trump showing markedly lower vaccination rates than heavily Democratic areas.

Abbott’s executive order banning vaccine mandates is especially problematic for Biden because it puts major corporations based in Dallas, Houston and elsewhere in a bind. Texas has far more Fortune 500 companies (49 of them) than any other state that bans vaccine mandates. Montana has none, Arkansas has four and Florida has 20. The two states with the most Fortune 500 companies, New York and California, have some of the strictest vaccine rules of their own.

“Governor Abbott has talked to countless Texans who are worried about losing their jobs because of this federal overreach,” Abbott spokeswoman Renae Eze told Yahoo News in an email. “The Biden Administration has left Texans in the impossible position of having to choose between providing for their families or being fired for not getting the COVID vaccine because of their religious belief, medical condition, or personal conscience. And they have left employers with the unfair choice of either violating federal regulations or losing their valued employees. The Governor’s executive order will help protect Texans from having to make that choice.”

Last week the Biden administration released a 20-page document that argued vaccine mandates work and have strong historical precedent. Biden acknowledged that mandates are “tough medicine, unpopular to some, politics for others.” He repeated what he has said before, which is that the mandates will hasten a return to normal.

“Vaccinations are going to beat this pandemic,” the president said

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