Delta Airlines defies the vaccine mandate, are they the first in what will rapidly become a trend?

As the Biden Administration readies the final mandate language that will take effect across the United States, companies grapple with their own implementation, firing workers, facing pushback from unions, and at times relenting.  The latest coronavirus wave is receding, however, making one wonder if another massive expansion of government power is worth it. 

“The reason the mandate was put in by [the] president, I believe, was because they wanted to make sure companies had a plan to get their employees vaccinated,” Delta Airlines CEO Ed Bastian told Fox News last week.  “A month before the president came out with the mandate, we had already announced our plan to get all of our people vaccinated. And the good news is the plan is working.”  Mr. Bastian shared that Delta had achieved a 90% vaccination rate, and expects that to increase to 95% in the coming months.  As a result, the company will not move forward with implementing a “divisive” mandate in the CEO’s words.  “By the time we’re done, we’ll be pretty close to fully vaccinated as a company without going through all the divisiveness of a mandate,” Mr. Bastian explained. “We’re proving that you can work collaboratively with your people, trusting your people to make the right decisions, respecting their decisions and not forcing them over the loss of their jobs.”

Trusting your people to make the right decisions?  That’s a refreshing idea.  Delta’s decision comes in the wake of a fiasco that recently affected Southwest Airlines, resulting in the cancellation of thousands of flights.  Southwest itself remains adamant these cancellations had nothing to do with employees expressing their dissatisfaction with the vaccine mandate, blaming it on weather in Florida and unexpected air traffic control issues, but others are not so sure.  The union representing Southwest pilots, the Southwest Pilots Association, had recently filed a motion for a restraining order against the mandate and several pilots have spoken out against it.  For example, Shawn Andrew Walker took to TikTok to express his concerns in a video that went viral.  “I’m being told in order to continue my career as an airline pilot, I must be vaccinated, which really means I have to choose between putting food on the table for my family, and my freedom of choice,” he said.

Texas Senator Ted Cruz, for one, sees the mandate and the cancellations as related, tweeting that this was Biden’s “illegal vaccine mandate at work” and “Suddenly, we’re short on pilots & air traffic controllers.”  The union itself, however, also denies the charge, issuing a statement reading, “SWAPA is aware of operational difficulties affecting Southwest Airlines today due to a number of issues, but we can say with confidence that our Pilots are not participating in any official or unofficial job actions.  Our Pilots will continue to overcome SWA management’s poor planning, as well as any external operational challenges, and remain the most productive Pilots in the world.”  Regardless, one thing is certain:  The battle over mandates is just beginning, especially when the Biden Administration has yet to release the final Occupational Health and Safety Administration rule that will require all businesses of 100 or more employees to police vaccinations in their workforce, more on that in a moment.

Republican lead states, including Texas and Florida, have already responded by banning vaccine mandates within their borders.  Critics, however, call this approach “beyond unhinged.” Michael Hiltzik, writing for The Las Vegas Sun takes aim at Texas Governor Greg Abbott who issued an executive order barring “any entity in Texas” whether public or private from imposing a mandate on either employees or customers.   The order states, “In yet another instance of federal overreach, the Biden administration is now bullying many private entities into imposing COVID-19 vaccine mandates, causing workforce disruptions that threaten Texas’ continued recovery from the COVID- 19 disaster.”  According to Mr. Hiltzik, “Abbott’s order is manifestly political, a sop to the far-right-wing Republican base in his state. But its impact can’t be minimized.”

His concerns center on two things:  First, the clash between executive orders at the state and federal level as Biden has already moved to require vaccination to all government contractors and to healthcare providers that receive reimbursement from Medicare or Medicaid.  Historically, the federal government’s orders supersede state action, but ultimately the courts will decide.  Second, Mr. Hiltzik believes that “Cynical politicians like Abbott are placing their own political fortunes ahead of the interests of their own constituents by putting residents at risk of severe illness, hospitalization, long-term disability or death. Is there anything more misanthropic and sociopathic in our national politics?”  In between, he even takes aim at the media.  For example, “Reuters wrote that ‘laws requiring proof of vaccinations are deeply controversial in the United States, with many Americans criticizing them as unconstitutional and authoritarian.’ This is spectacularly incorrect. Vaccination mandates have been accepted, even welcomed, by parents of school-age children for more than a half-century.”  He concludes that no one ever heard a peep about mandates until the right wing “decided to cop an attitude.”

At no point, however, does Mr. Hiltzik address three obvious and quite pressing issues:  No mandate has ever been issued for a virus with a case fatality rate under 1%, no mandate has ever been issued by the Federal government, indeed that was considered impossible by the Biden Administration itself as late as July, no mandate has ever been managed by employers in real time, and is a mandate even needed in the first place at this point?  These are hardly minor issues after living through more than 18 months of state and local governments seizing hitherto unheard of powers to combat the virus. The question, often asked, but never answered in any meaningful way:  When and how will it all end?

The Biden Administration and public health experts are pushing vaccine mandates as the end point, but they are also readying booster shots, meaning this mandate could well be an ever moving target, possibly resulting in two mandated shots per year.  Nothing like this has ever been tested in the courts or even tried before.  The 1904 Supreme Court decision that ruled state and local governments have the ability to mandate vaccinations under police powers didn’t remotely consider anything like a rolling Federal regime.  The vaccine in question was against smallpox, a disease that had ravaged humanity for centuries, killing close to a third of those infected.  The vaccine was administered via a single shot and the case was decided years after the mandate was in place.  The mandates being discussed now are much closer to requiring an annual flu shot, something which to my knowledge has never been discussed, much less implemented.

The slippery slope is an overused canard, but not one without some relevance here:  If the federal government can mandate two vaccinations per year against an illness with an over 99% survival rate, are there any vaccinations or inoculations they cannot mandate?  Putting this another way, why would the government’s mandate power under this reasoning not also extend to the annual flu shot?  Of course, it almost certainly would, but here the structure of the mandate is also important:  Annual inoculations would be a logistical challenge under most existing mandates which are enforced during entry to school, at the start of a job, or some other milestone.  There is currently no mechanism to verify annual vaccine compliance, but there certainly will be if the Biden Administration gets its way.  Does anyone truly believe the public health experts will stop at coronavirus?

Nor is this the only relevant concern about the structure of these mandates and their potential disparate impact on the workforce.  Generally speaking, vaccine mandates are enforced prior to doing something, going to school or getting a new job.  The individual is aware in advance that a certain vaccine is required and implicitly consents to the mandate by entering into the relationship.  The new mandates, however, are imposed on top of already existing relationships, resulting in thousands of people across the country losing their jobs for failure to comply.  This includes so-called “front-line” and “essential” workers who were considered heroes for keeping the country functioning throughout the pandemic.  It also includes such workers that already contracted coronavirus, possibly as a result of their being on the front lines, and who have a higher degree of protection than offered by the vaccine.  What rational sense does it make to fire someone who got the virus at work while caring for infected Americans?

Lastly, it’s worth considering whether a mandate is even needed with declining cases and some experts predicting no additional waves.  What is the point of yet another expansion of government power into yet another new sphere when the mandate will take effect after the pandemic is largely over?  Reports last week claim that the final language of the OSHA mandate was sent to the White House for review and approval last week.  That process could take 90 days.  Cases, however, have declined by around 50 percent over just the past 4 weeks, from a high of 175,822 (7-day average) on September 13 to 83,576 on October 16.  If this pace continues, what benefit will the mandate provide compared to the cost and intrusiveness?

Perhaps needless to say, none of these obvious points have given the slightest pause to proponents of the mandate at all costs.  Stuart Shapiro, writing for The Hill, claims a “swift and thorough White House review of [the] vaccine mandate is critical.”  This review will balance the economic costs, legal terms, and other factors, some of which are expected to be significant, as in over a $100 million with the final figure likely orders of magnitude higher than that.  Mr. Shapiro writes, “I have not seen the economic analysis of the regulation, but I suspect that the benefits (particularly the expected lives saved) are considerable and significantly outweigh the costs.”  According to him, “COVID-19 is a problem now. While infection rates, hospitalization rates, and deaths from the pandemic are all declining, we are not out of the woods yet. The best way to ensure that the next wave of the pandemic is less severe and less extensive than previous waves is through vaccinations.”

This is an untested proposition, however.  If the Delta-variant is any indication, the efficacy of the vaccine will decline even further with the next wave.  Remember, we started the vaccine process with promises of over 95% protection against developing symptoms.  Delta and potentially other factors drove that down to around 60% based on my best estimate, please forgive my vagueness here, an accurate number is impossible to find.   Whatever the precise figure, what will the next wave bring when you consider that coronavirus in general is notorious for mutating and most of us will experience dozens of coronavirus-induced colds in our lifetimes?  Mr. Shapiro couches this by choosing the phrase the “best way to ensure the next wave of the pandemic is less severe” where “less” is undefined and perhaps “only” would be more apt because there is no other point of comparison.

At the same time, does the mandate make any sense if the vaccine is only 30% effective?  15%?  Of course, they don’t say.  Instead, they ignore the question entirely.  Why might that be?

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