Which legal arguments against OSHA's COVID-19 vaccination mandate are most likely to succeed?
On December 16, 2021, President Biden channeled his inner Jonathan Edwards in issuing his The Unvaccinated in the Hands of an Angry Fauci speech. While the White House did not issue its remarks with such a catchy and enduring title, the substance of the speech felt like an adaptation of the original: “We are looking at a winter of severe illness and death for the unvaccinated—for themselves, their families and the hospitals they’ll soon overwhelm,” Biden said. That kind of rhetoric may work on people who are already in the proverbial vaccine church and those on the fence about getting a booster. However, if the idea is to convert the unvaccinated, that sort of language is not going to lead to many COVID vaccine baptisms. There are plenty in the left-of-center political orbit who are demonstrably good at communications, i.e. winning elections in purple suburbs across the country. Then what to make of this wildly varying vaccine messaging—precious little of which is conciliatory or unifying—from President Biden, Emmy Award-winning former Governor Cuomo, and countless others?
There is little incentive for consistent and apolitical messaging regarding the vaccine. Since the promise of a COVID vaccine, the vaccine messaging has been manic in substance and tone and inconsistent and political (as opposed to scientific) from elected officials and authorities. Presidential candidate Biden, later President Joe Biden, and Governor Cuomo all provide salient examples of remorseless shifts in vaccine rhetoric.
Vaccination Vexation from the Would-Be President
In September 2020, then-candidate Biden fueled the COVID vaccine skepticism fire. “I trust vaccines. I trust scientists. But I don’t trust Donald Trump,” Biden said. “And at this point, the American people can’t, either.” The New York Times article summarized then Presidential candidate Biden’s comments in its headline: Biden, Seizing on Worries of a Rushed Vaccine, Warns Trump Can’t Be Trusted. That candid headline could have just easily read: Biden, Seizing on Worries of a Rushed Vaccine, Warns Vaccine Developed Under Trump Can’t Be Trusted.
In presidential candidate Biden’s September 2020 view, trust in the vaccine’s approval was contingent primarily upon federal government approval and which Administration ultimately approved it. It turned out to be a little bit of this (COVID vaccine emergency authorization after the election), and a little bit of that (authorized by the Trump Administration). On December 11, 2020, the U.S. Food and Drug Administration issued the first emergency use authorization (EUA) for the Pfizer-BioNTech COVID-19 Vaccine for the prevention of coronavirus disease 2019 (COVID-19) in individuals 16 years of age and older.
On December 21, 2020, Biden had done a complete 180 on the vaccine’s safety and efficacy as he rolled up his sleeve to receive his first dose. He even gave the Trump administration a tepid endorsement of its efforts, saying Trump “deserves some credit getting this off the ground with Operation Warp Speed.”
Emmy Award Winning Vaccination Vexation
On November 20, 2020, Cuomo was presented with the 2020 International Emmy Founders Award for “his leadership during the COVID-19 pandemic and his masterful use of television to inform and calm people around the world.” This award was later rescinded “in light of the New York Attorney General’s report” on allegations of sexual harassment by then-Governor Cuomo. However, a closer look at some of Cuomo’s pronouncements about the vaccine reveals a political messaging that induced anxiety and confusion rather than information and sobriety. On September 24, 2020, then New York governor Andrew Cuomo said New York state would independently review all vaccines authorized by the federal government. “Frankly, I’m not going to trust the federal government’s opinion and I wouldn’t recommend it to New Yorkers based on the federal government’s opinion,” he said in a statement.
On January 18, 2021, not even a full four months after his bold COVID vaccine skepticism pronouncements, then-Governor Cuomo issued an obsequious official letter to Pfizer Chairman and CEO Dr. Albert Bourla. In the letter, he asked “for the ability to purchase COVID-19 vaccines directly from Pfizer, as the company is not bound by commitments that Moderna made under Operation Warp Speed.” The language resembled that of a lobbyist:
On behalf of all New Yorkers, I want to thank you and the teams at Pfizer and BioNTech for your hard work to develop a safe, effective vaccine for COVID-19. The last ten months have been exceptionally dark—but your efforts have provided a bright light at the end of the tunnel and hope for a better future. It is abundantly clear that these vaccines are the weapons that will finally win the war against COVID-19.
There is evidence that the ostensibly politically inspired summer 2020 rhetoric on vaccines took its toll not only on Republicans, but also Democrats: The percentage of Democrats willing to take the vaccine fell from 83 percent in July 2020 to 53 percent in September 2020, according to a Gallup poll. Fast forward to late 2021, it is now true that blue voting counties have higher vaccination rates than red counties. Those who now combatively pledge allegiance to science appeared to only do so once their favored presidential candidate was elected. This fact is puzzling, as Biden went to law school and was a practicing attorney for only a few years before he focused on his political career. Similarly lacking in distinct scientific bona fides, Trump studied business and finance at Fordham and later at Wharton. Trump’s career encompassed many things from real estate to entertainment prior to his Presidency. All of this is to say, it is curious that anyone’s initial trust of the vaccine would hinge on the election of a lawyer turned career politician versus a businessman/entertainer turned president.
President Biden, Governor Cuomo, public figures generally, and private citizens alike should reserve the right to change their minds on issues both important and unimportant. Winston Churchill once said to a woman berating him for changing his position, “When the facts change, I change my mind. What do you do, madam?” The problem in the case of President Biden, Governor Cuomo, and others on the COVID vaccine issue was not that they altered their conclusions, tone, and messaging. It is that their messaging—however inconsistent—seems consistently political and unscientific.
The White House’s Mandated Vaccination
A week after the November 3, 2020 election, Sarah Zhang of The Atlantic wrote a thoughtful and prescient piece entitled The Lame Duck Vaccine with the pitch-perfect subheading: “The Trump administration spurred development of a vaccine; the Biden administration has to persuade Americans to take it.” Zhang quoted Heidi Larson, an anthropologist and the director of the Vaccine Confidence Project, who said of Biden: “If he says, ‘I fully endorse the vaccine put in motion under the Trump administration. Our decisions are made on the science’ … that already would be something.”
Apart from President-elect Biden’s lukewarm interregnum tip of the hat to Operation Warp Speed, no such unifying message was prioritized in the coming months. In fact, disunity quickly came to the fore. In early 2021, the supply of vaccines on the ground, so to speak, did not meet the initial overwhelming American demand. As early as January of last year, Biden’s Chief of Staff said “The process to distribute the vaccine, particularly outside of nursing homes and hospitals out into the community as a whole, did not really exist when we came into the White House.” Stating there was no coronavirus vaccine distribution plan set up by the Trump administration could charitably be seen as an improvement upon casting doubt on the vaccine itself—as Biden himself did just four months earlier. However, repeatedly throwing the previous administration under the bus regarding vaccine distribution certainly did not diminish the politicization of the vaccine. While it did not politicize the vaccine’s efficacy this time, it did continue the vaccine as a political football motif.
By June 2021, several months had passed since Larson, the director of the Vaccine Confidence Project suggested a forceful unifying message around the vaccine that specifically invoked Trump. When Biden finally gave one, a Business Insider headline got right to the point: Biden acknowledged Trump’s role in the vaccine rollout as he urged skeptics to get the shot. Biden said, “The science was done under Democratic and Republican administrations. Matter of fact, the first vaccines were authorized under a Republican president and widely developed by a Democratic president—deployed by a Democratic president.”
Half a year after that, in something of an early Christmas miracle on December 23, 2021, Biden once again acknowledged the Trump Administration’s role in the vaccine: “Thanks to the prior administration and our scientific community, America is one of the first countries to get the vaccine,” Biden said from the White House: “Thanks to my administration, the hard work of Americans, we let—our rollout made America among the world leaders in getting shots in arms,” Biden continued.
All‘s well that ends well, as they say. For those who wish to chip away at the number of unvaccinated Americans however, it would be more accurate to say, “better late than never,” in this instance. The damage has been done by the wildly vacillating messaging. So again, why would Biden’s political orbit—which includes plenty of competent communications professionals—vacillate recklessly between doubt, blame, conciliation, doom, threats, and finally back to conciliation again?
Simple. The plan was never to communicate. It was to mandate. Case in point: On November 5, 2021, the Federal Occupational Safety and Health Administration’s (OSHA) published 490 pages on Vaccination and Testing Emergency Temporary Standard (VAX ETS): “The employer must establish, implement, and enforce a written mandatory vaccination policy.”
To be pro-vaccine and simultaneously anti-mandate is to favor persuasion over force. However, if one is simply pro-mandate—especially favoring mandates which were not devised through any legislative process—then occasional olive branches to the previous administration and a smattering of warm, almost avuncular Public Service Announcements are mere niceties. Mandates from unelected bureaucracies do not require clear communication and willing cooperation. They only require a simple decree: Bend the knee.