Vermeule, the Law, and Vaccine Mandates

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Jose Espinoza, 27, receives a COVID-19 vaccine at a vaccination clinic in Los Angeles, Calif., August 17, 2021. (Lucy Nicholson/Reuters)

Vaccine mandates are a fraught subject at the intersection of the twin conservative values of public order and private liberty. They are complicated by the fact that there is more than one kind of mandate. It is possible to support state government mandates, but believe that the federal government has no general constitutional power in this area. It is possible to support private business mandates but not governmental ones, given the rights of private business owners and the superior coercive force of government. It is possible to support government permitting or requiring mandates on employees of business and government and also support state bans on mandates on customers, who interact more briefly with a greater number of businesses. It is possible to oppose mandates in general, but support them in some particular circumstances, such as soldiers, nurses, or cruise-ship passengers. It is possible to favor vaccine mandates in general, but be skeptical of mandating a particular vaccine. It is possible to think mandates are permissible in theory but counterproductive in practice. Finally, it is possible to take the stance of some on the right (both the MAGA “never give an inch” Right and the libertarian Right) that even if mandates make sense in some circumstances, it is imprudent to go along with them because they cede more power to the same forces of elite, left-leaning social control that have pushed at every turn for more levers of power throughout the pandemic.

Bari Weiss spoke to a variety of people across the political spectrum in her latest newsletter. Given his prominence in what you might call the MAGA-adjacent field of attacking originalist constitutional interpretation from the right and promoting the administrative state, it is noteworthy that Harvard Law professor Adrian Vermeule argues for the legality of Joe Biden’s OSHA vaccine mandate and the duty to respect it because it comes from the commands of expert authority:

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. . . . The common good is itself the highest good of individuals . . .

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. . . . 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. . . . 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. . . . These difficult pragmatic questions are actually easiest for the subjects of the law. . . . I am duty bound — as are we all — to respect the commands of those in authority charged with deciding them, short of flagrant arbitrariness.

Josh Hammer’s theory of “common-good originalism” is, of course, not identical to Vermeule’s point of view, which places great stress on empowering the bureaucracy. But as I noted recently, it shares a tendency to greater deference to the exercise of government power over individual rights. For those who seek alternatives to originalism primarily as means to policy ends, the extent to which those alternatives would further the power of the public-health bureaucracy should give some pause.

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