Robert A. Levy is chairman of the board of directors at the Cato Institute and gives his name to the Robert A. Levy Center for Constitutional Studies. He joined Cato as senior fellow in constitutional studies in 1997 after 25 years in business. Levy is also a director of the Institute for Justice.
He received his PhD in business from the American University in 1966. That year, he founded CDA Investment Technologies, a major provider of investment information and software. Levy served as CEO until 1991. He then attended George Mason School of Law, where he was chief articles editor of the law review and class valedictorian. Levy received his JD in 1994. The next two years, he clerked for Judge Royce C. Lamberth on the U.S. District Court in Washington, DC, and for Judge Douglas H. Ginsburg on the U.S. Court of Appeals for the DC Circuit.
From 1997 until 2004, Levy was an adjunct professor of law at Georgetown University. His writing has appeared in the New York Times, Wall Street Journal, USA Today, Washington Post, National Review, and many other publications. Levy has also discussed public policy on national radio and TV programs, including ABC’s Nightline, Fox’s The O’Reilly Factor, PBS NewsHour, and NBC’s Today Show. His latest book is The Dirty Dozen: How 12 Supreme Court Cases Radically Expanded Government and Eroded Freedom. Levy served as co‐counsel in District of Columbia v. Heller, the successful Supreme Court challenge to Washington, DC’s, gun ban.
Where does Biden get the authority to mandate vaccination? It’s a difficult question, and everyone seems to have their opinion. Indeed, there are approximately as many opinions as there are arms that can receive the jab. Walter Olson predicts that the new OSHA-issued employer vaccine mandate will be challenged, all the way up to the SCOTUS. But will it survive? And more importantly, is it a good policy? Libertarians disagree, and although they almost all oppose the mandate, they oppose it for different reasons.
The Cato Institute Chairman Bob Levy joins me to discuss the nuances of the libertarian perspective on vaccine mandates, this Sunday. He recently wrote an op-ed for the Hill titled, “Vaccine mandates: A liberty-minded perspective”, in which he helps us think through the various liberty concerns around bodily autonomy versus endangerment. He’ll also define the “nondelegation doctrine,” and explain why every thoughtful citizen should understand this 5-syllable word.
Links & Summary
1. What libertarian principles might apply in deciding whether a COVID vaccine mandate is justified?
2. Are regulations that address possible future harm rather than actual past injury consistent with libertarianism?
3. What safety factors would you consider in assessing a vaccine mandate?
4. What about effectiveness – mandate vs no mandate?
5. Do breakthrough cases indicate that the vaccine is ineffective at preventing infection?
6. Are there alternatives short of forcing people to inject something into their body?
7. What other factors would you consider, and what’s your bottom line on the desirability of a mandate?
8. Is the Biden administration's mandate for all federal employees and private companies employing more than 99 persons legally permissible?
9. What are the federalism implications of a federal mandate?
10. Can a mandate be imposed by an administrative agency, without an act of Congress?
11. Can the president impose a mandate by executive order?
12. Can the feds threaten to withhold funding unless recipients comply with the mandate?
Vaccine mandates: A liberty-minded perspective
What will be the enforcement process, and the punishment for non-compliance? Will there be reporting requirements? Data tracking? Will special interests - drug companies being one example - exploit their government-conferred market power? Will politicians use the next crisis to rationalize even more invasive decrees?
It's a close call.
Perhaps a vaccine mandate can be geographically or demographically constrained. That’s an obvious consideration, which suggests that local officials be given substantial discretion in establishing the scope of any mandate. Or perhaps vaccinations could remain optional, but with restricted access to selected activities by the unvaccinated. That notion — a vaccine “passport” — has the support of nearly 82 percent of Americans, according to a recent survey.
Signed by 24 state attorneys general.
Points out a central contradiction – Biden says vaccines are very effective (1 in 160,000 vaccinated people hospitalized per day) but under OSHA emergency authority, can only add a new circumstance if it puts workers in grave danger. So are the vaccinated a grave danger or aren't they?
Levy has made a series of appearances on the Bob Harden Show in Florida, where he defends aspects of the vaccine & certain kinds of limited mandates, while opposing the OSHA mandate.
- Biden's six-point plan includes mandate for private companies employing 100 or more people, plus a mandate for federal employees.
- Levy says its legal for federal employees and private sector employees funded by Medicare and Medicaid as a condition of their funding.
- Impermissible for private employees because Congress cannot and did not delegate this broad of power to an administrative agency.
- The states has police power, not federal government, and a health mandate is not a proper exercise of interstate commerce.
- The Federal gov't cannot commandeer private parties to do what they don't have authority to do on their own.
The Basic Principles
- Using the libertarian maxim re: do what you want as long as you don't harm people, there are a few questions:
- 1) Does the vaccine harm you? If not, can you refuse to be injected on the grounds of personal autonomy?
- 2) Do you harm other people by not getting vaccinated?
- Libertarians allow gov't intervention when you some people are violating the rights of others.
- Sometimes, they punish a risky behavior that could harm someone in the future, i.e., speeding.
"So then the question is, how much risk Do I have to incur before you behave in a manner that could cause me harm sometime in the future. And when we can't figure that out on a rights basis, because of the conflicting rights, then sometimes we look to these cost benefit trade offs, you know, utilitarian principles."
- Vaccine Mandates are nothing new - all 50 states require them for school children.
- 170 million Americans have been vaccinate, and CDC says they are safe.
- Bob Harden suggests that there is conflicting evidence re: safety, with many breakthrough infections, and hospitals filling up again in countries like Israel and Great Britain which vaccinated a large percentage early on.
- Levy responds that fewer are dying or having severe reactions, and that the more people are vaccinated, the more we would expect the remaining cases to be in the vaccinated.
Levy: [I]f all this does is reduce the amount of risk from a recurrence, that still, I think is a worthwhile objective, and then, of course, it has to be weighed against all these other factors.
Harms of Remaining Unvaccinated
Levy: But in fact, there are ... at least three classes of people harmed. 1) people who can't be vaccinated for medical reasons, and then they get COVID from an unvaccinated person. 2) people who cannot now obtain medical treatment for lots of other things because unvaccinated COVID patients have strained the capacity of hospitals particularly in Florida and Texas, where hospitals are at their limit. 3) people who may be affected by this new Delta variant, which might not have mutated if the larger percentage of the population had been vaccinated.
Harden replies that he might favor a mandate if COVID were as contagious as it has originally been thought to be, and praises DeSantis for emphasizing therapeutics like monoclonal antibodies.
Levy responds that DeSantis erred in preventing private employers from discriminating against employees or customers, i.e., Norwegian Cruise Lines.
Levy: property rights are involved there and the Desantis should not be enforcing a ban on vaccine mandates by a private entity. The property owner has the right to specify the terms and conditions of employment for the crew, and also whether or not a person a passenger, who might have a highly contagious disease should be allowed to enter the property owners' promises. So I do think that this is a property rights issue quite separate from the issue of safety and efficacy of the vaccine.
Some of the articles that Levy uses to back up his argument re: the interest that there might be for the public to get vaccinated.
Considering the Alternatives
- Periodic testing (most would prefer a vaccine)
- Masks/social distancing (people are tired of it)
- Natural Immunity (Studies indicate it's not as strong)
A vaccine passport is not a mandate but rather ties it to voluntary choice e to engage in certain activities.
How would it be implemented? Punish people for not complying with the mandate? Require people to report periodically or to carry a paper? Data tracking that intrudes on privacy? The drug companies, of course, would be granted special market power because everybody would be required to use their product – will they be exploiting that? Will politicians use this emergency declaration as justification for other activities? … a modified, narrowly tailored and time-limited set of rules might be justified for vaccines.
Over 380 million doses of COVID-19 vaccine have been given in the United States from December 14, 2020, through September 13, 2021. COVID-19 vaccines are safe and effective. COVID-19 vaccines were evaluated in tens of thousands of participants in clinical trials.
According to CDC, COVID-19 vaccines are safe and effective. Serious health problems, such as anaphylaxis and thrombocytopenia syndrome (TTS), are rare, and long-term side effects are unlikely. The vaccines have been under the most intensive safety monitoring in US history.
COVID Vaccine and New Virus Strains
The development of a new COVID-19 variant is not unique - variants occur in all viruses. And the scientists studying the disease and developing COVID vaccines have always anticipated that new strains would evolve. Viruses mutate when they replicate and create a slightly different version of the virus.
The current vaccines (Moderna, Pfizer, and J&J) help protect against the four current COVID variants (Alpha, Gamma, Beta, and Delta) and also prevent the emergence of new variants.
Other articles like this one say that vaccination puts evolutionary pressure on viruses to mutate.
Florida's COVID-19 surge creates 'unprecedented' wait times for hospital beds
TAMPA, Fla. - Florida hospitals are receiving a record number of patients with COVID-19. The weight falling on emergency rooms is now trickling onto extra floors and even outside emergency services. "We're seeing unprecedented numbers, unprecedented requests for service," said Jeremy Fischler the Quality Management Chief with Hillsborough County Fire Rescue.
COVID surge strains Florida hospital bed capacity.
Dozens of Texas hospitals are out of ICU beds as COVID-19 cases again overwhelm the state's capacity
Sign up for The Brief, our daily newsletter that keeps readers up to speed on the most essential Texas news. Dozens of Texas hospitals have run out of intensive care unit beds as COVID-19 surges faster than any other time during the pandemic, propelled by the new delta variant.
Texas hospitals run out of ICU beds due to the spread of the Delta variant.
See the Data on Breakthrough Covid Hospitalizations and Deaths by State
Serious coronavirus infections among vaccinated people have been relatively rare since the start of the vaccination campaign, a New York Times analysis of data from 40 states and Washington, D.C., shows.
The Times reports data on breakthrough infections, which occur when a fully vaccinated individual gets infected with COVID. Data shows that vaccinated people only accounted for 0.2 to 5.6 percent deaths and 0.1 to 4.7 percent hospitalizations. Breakthrough rates are expected to increase as more people get vaccinated. It is also noted that most breakthrough cases are not diagnosed as these cases tend to be mild. This calls for a need for better data.
COVID-19 vaccines offer better protection than natural immunity alone
Vaccination efforts are underway in many countries as the threat of coronavirus disease (COVID-19), caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), continues. Globally, over 4.47 billion vaccine doses have been administered, with many countries striving to immunize as many people as they can. Now, the U.S.
This data cuts against a lot of other data about natural immunity being more effective (see Todd Zywicki)
Where Does Biden Get the Authority to Mandate Vaccination?
The emergency process bypasses these protections for the regulated and for judicial review as a check. True, the process as foreseen is one in which OSHA is supposed to start developing a rule the regular way, which would at some point catch it up with the need to base its rules on a reasoned public justification.
The White House is relying on the regulatory authority of the Labor Department’s Occupational Safety and Health Administration (OSHA), an agency dating back to 1971, and in particular its seldom‐used emergency powers.
Courts have frequently struck down OSHA actions, especially when the agency has tried to issue the type of peremptory decree it calls an emergency temporary standard (ETS).... The emergency process bypasses [notice and comment period, which prepares the way for judicial review] protections for the regulated and for judicial review as a check. True, the process as foreseen is one in which OSHA is supposed to start developing a rule the regular way, which would at some point catch it up with the need to base its rules on a reasoned public justification. But that comes afterward. In the meantime it can use the excuse of emergency to regulate first and explain later.
What about people with natural immunity or who work from home? How can government prove they are putting others in 'Grave Danger?'
Even when OSHA makes rules through its conventional process, there are real constitutional questions about the limits of its authority. In 2008, Harvard University law professor Cass Sunstein, who went on to serve as former President Barack Obama’s regulatory chief, published an article entitled “Is OSHA Unconstitutional?” He addresses the problem of “nondelegation” arising from Congress’ having seemed to bestow on the agency such wide powers, akin to those of a legislature, with so few checks. The Supreme Court has backed off since then on trying to breathe life into nondelegation doctrine as such, but Sunstein suggests that constitutional principle should at least call for close judicial review that would hold the agency to standards of rationality, consistency, and legality.
Interstate commerce challenge or lack of religious accommodation might also sink the mandate.
Predicting what happens next:
Courts have applied tougher scrutiny to OSHA’s emergency decrees than to its garden‐variety rules. … As attorney Michael Schearer points out, of the nine times OSHA used its emergency power until this summer, three went unchallenged, but of the six that went to court, only one instance was fully upheld.
And this makes sense. Ordinary OSHA rule making builds a detailed record and rationale, including time for objections, which allows judges to hold the agency to some semblance of legality. Emergency powers bypass that. … A lot of the blame here lies with past Congresses, which saw fit to arm this agency with grossly overbroad powers.
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