Vaccination Mandates Are Not Government Over-reach

The US Supreme Court on January 13 blocked President Joe Biden’s attempt to mandate that businesses must require their employees to be vaccinated against the coronavirus or else wear masks and be tested regularly.  This “emergency standard” was to have been applied by the federal Occupational Safety and Health Administration, carrying out its responsibility under long-standing legislation to protect workers facing danger in the workplace.

In some countries, governments have imposed vaccine mandates on their entire populations, or at least on all workers.  They include Austria, Ecuador, and Indonesia.  Germany is currently deciding on a mandate.  Many more, like Italy, have imposed the requirement on subsets of the population, such as health workers or those over 50.

But other governments have left the vaccination choice up to the individual, including Denmark and the United Kingdom.  In some places, political opposition from segments of the public is as strong as the anti-vax movement in the U.S.

The vaccines work.  Unvaccinated people are approximately 15 times more likely to die from Covid-19 than unvaccinated.

Nevertheless, even among those Americans who accept that the Covid-19 danger is real and that the vaccines are safe and effective, some say that the decision of whether to get the shot should be a matter of individual choice.  They call government mandates an instance of government overreach.  The majority of Supreme Court justices (6-3) reflected this perspective, referring to “a significant encroachment into the lives” of affected workers.

Americans may be unusually prone to invoke freedom for the individual and to praise the small government. But a sort of presumption that laissez-faire should be the default option in public policy is consistent with textbook economics.  Individual decision-making can take care of many matters, following the logic that individuals are the best judge of their own welfare and that when consenting adults engage in a voluntary transaction of some sort, it must be that each benefit.

More specifically, before rushing to government intervention, it is a good discipline to identify a particular market failure, that is, a reason why the free market does not give the right answer, the efficient outcome.  Usually, this is not hard to do.  Externalities like pollution are a classic case of a market failure: Others, who are not a party to the polluting activity, bear the cost when they breathe the air or drink the water.  As a result, the free market will produce too much pollution.

Other categories of market failure include public goods, monopoly power, and the inability of the individual to make an informed decision (such as in the case of children).  Income distribution is another valid justification for government intervention.

It would be very difficult to get everyone to agree on where to draw the line between examples in which the benefits of government intervention outweigh the costs and examples in which they do not.  But it should be easier to achieve agreement on an ordering of various practical applications according to the strength of the argument for intervention.  Such an ordering, in turn, might help people think more clearly about the case of vaccine mandates.

Consider, briefly, 15 policy issues, arrayed in a proposed sequence from the strongest, most widely accepted, a case for government intervention, to the weakest.

Murder is illegal; the law is enforced by the police and criminal justice system. Even diehard libertarians agree that this is as it should be.  Law enforcement is a bedrock function of government.

Individuals cannot possess tactical nuclear weapons. The wisdom of this ban should be obvious.

We put up traffic lights at busy intersections and back them up with police enforcement. The case for this is stronger (even) than the case for requiring seatbelts, in that a good share of the mortal danger from running a red light falls, not just on the driver, but on others who may be driving on the cross-street. Some might argue that seat belts should be a matter of individual choice because most of the danger is borne by the driver.

Coming to the subject of this commentary, I propose that a covid vaccine mandate for all workers (allowing for medical exemptions) should fall approximately at this point in the sequence, at policy #4. Readers are invited to check if they disagree. (Incidentally, if workers are offered an alternative of testing and masking, as in the Biden effort, it is that much harder to cry government overreach.)

All 50 states require that children be vaccinated against a set of communicable diseases: diphtheria, pertussis (whooping cough), polio, measles, rubella, and chickenpox.  Thanks to the vaccines, these six diseases, which used to kill millions, have been virtually eliminated from the United States.  Someone who approves of these requirements should also support a Covid-19 vaccine mandate.

We regulate air pollution, as noted because it is an externality that impacts the health and well-being of others. Pollution and communicable diseases are alike in this sense.

All 50 states also require vaccination for tetanus. Unlike polio and other communicable diseases, tetanus is not communicated person-to-person. Thus, a purist libertarian might argue that individuals should be able to decide for themselves.  But when it comes to children, there is an extra argument for government intervention.  (In practice, one gets the tetanus vaccine in combination with the vaccines for diphtheria and whooping cough, so no separate decision is necessary.)

Among the workplace hazards that OSHA regulates are asbestos, coal dust, and other pollutants in the air of the workplace. A true libertarian might argue that workers can choose not to work for employers known to be unhealthy.  But workers don’t have full information. The government is better able to evaluate the science.  In that respect, it is like dealing with the coronavirus.  In both cases, by the way, a further argument for government intervention is that society pays a good share of the cost of an individual’s illness, and did before Obamacare was even on the horizon.

Government heavily regulates alcoholic beverages, including high taxation, prohibition on sale to minors, and punishment for drunk driving. (In the US, the details vary from state to state.)

The same is true for cigarettes, though the costs imposed on bystanders are not as great as for drunk driving. In both cases, society pays a good share of the cost when the partaker falls ill.

Respect for individual freedom suggests that it would be going too far to ban alcohol (or cigarettes) altogether. For starters, it would be unenforceable, as the US learned under Prohibition (1920-33).

Similarly, it would be going too far to make gambling illegal. A paternalist would point to the irrationality and addictiveness of gambling. But a total ban is unenforceable.  Also, unlike alcohol, virtually the entire burden of gambling falls on gamblers themselves.  There is little or no externality, other than intra-family.

Government can exercise eminent domain, seizing the private property of landowners. This is a huge encroachment of individual property rights, and yet is common, even in the U.S. Furthermore, many conservatives support eminent domain when it comes to building an oil pipeline.

Many addictive drugs, like heroin, are illegal. Most people support this, though others argue that it should be a matter of individual choice.

Let’s conclude with the most illogical of covid-related government policies. Florida Governor Ron DeSantis last year made it illegal for cruise lines and other private businesses to require vaccination of customers. What made this law breathtakingly illogical is that belief in private-sector rights should allow a private cruise line to judge for itself that its potential customers, before getting on a ship, want to be assured that their fellow passengers are vaccinated.  Consenting adults want to engage in a voluntary transaction. The policy views of the Governor, and others like him, are evidently not based on respect for individual rights, as they claim, but on something else.  Presumably not a desire to spread covid.  Perhaps, then, these positions are declarations of membership in a particular political tribe.

If one judges that the benefits of government intervention outweigh the costs in the cases of policies 5 through 11, one logically might figure the same is true of covid vaccine mandates.