Below is my column in the Hill on the shift from reasoned consent to coerced consent in the campaign for vaccinations. The push by the Biden Administration for private companies to enforce mandates and restrictions has increased in the last week. There is a high likelihood of a new round of litigation as pressure builds for new mandates and even lockdowns.
Just before this column ran, CDC Director Rochelle Walensky was asked by Fox host Bret Baier “Are you for mandating a vaccine on a federal level?” She responded “That’s something that I think the administration is looking into.” Later she reversed herself by saying “I was referring to mandates by private institutions and portions of the federal government. There will be no federal mandate.” It was a telling response because she was asked about a federal mandate directly. She now says she meant to say a privately enforced mandates is what they are thinking about. The reversal may be a problematic as the original. It would confirm that the Biden Administration is using private companies as a type of direct surrogate for a public mandate.
Here is the column:
“They didn’t get vaccinated.” Those words from President Biden summed up why his administration made a critical shift in its COVID policies, from mask recommendations to mandatory shots for federal workers. And that represents a third stage of government policy, toward a more confrontational approach to “them” — the increasingly demonized unvaccinated class that is roughly half of America.
But this stage could face legal challenges in coming weeks, as citizens and some states push back on mandates.
This month was a clear break from persuasion and a step toward coercion in dealing with those who refuse to be vaccinated. Even the normally staid Centers for Disease Control and Prevention (CDC) is ramping up its rhetoric, declaring that the “war has changed” due to the Delta variant. For some, however, there is concern that Biden’s “they” is a declaration of war on them.
Clearly, there is a rapidly diminishing level of communication between the “vacs” and “non-vacs.”
Stage One: Reasoned consent
Until recently, the Biden administration relied largely on what could be called the “reasoned consent” model. Not unreasonably, it assumed that Americans would want the vaccine, given the dire consequences of being unvaccinated. For many of us, it took little persuasion. My family and I took the earliest possible date for vaccinations. But this first stage was in some regards a failure: While more than 85 percent of the high-risk population of older Americans have been vaccinated, roughly half of the wider population has not been fully vaccinated.
A myriad of reasons exist: distrust of government programs among some minorities and conservatives; people who previously had COVID-19 considering themselves immune; those concerned with religious or medical issues. Billions spent on state and federal outreach programs failed to penetrate that wall of resistance.
Stage Two: Induced consent
As long lines disappeared at vaccine centers, it became clear that many citizens have come to distrust the media and the government on this, as on so many issues. Anyone raising questions about the virus — even its origins — was censored by Big Tech, and politicians weaponized the wedge issue for their own purposes. Such censorship continued this week even for those merely suggesting a “pause” to examine the data. For people already distrustful of the government, the censorship and overheated rhetoric only confirm their suspicions.
Government officials then shifted from reasoned to induced or compensated consent. In Ohio, $1 million lottery prizes were offered to those willing to take the shots; other states offered free metro or free museum passes. It didn’t work — but that didn’t stop President Biden this week from telling states to use federal funds to offer $100 for every person who consents to take a shot. It is the monetization of vaccination under the logic that those not motivated by self-preservation will be persuaded by a C-note.
The government and the media, however, remain unwilling to engage vaccine resisters beyond stereotyping them as “Trumpers” or pandemic-spreading morons. That includes censoring questions and opposing discussion of whether the level of statistical risk should leave this to be a matter of individual choice, as with other viruses and illnesses.
Stage Three: Coerced consent
We are now entering the “coerced consent” stage. Unable to persuade or purchase consent, many are arguing to make it difficult to be gainfully employed or functionally active without proof of vaccination. It is a type of de facto pandemic passport. After indicating the administration was considering a federal vaccine mandate, CDC Director Dr. Rochelle Walensky said this week, “I was referring to mandates by private institutions and portions of the federal government. There will be no federal mandate.”
Unwilling to face the legal or political challenges of mandating a vaccination program, the Biden administration has actively encouraged companies to bar unvaccinated people from planes, restaurants and other venues. The danger is that using companies to censor opposing views and restrict people can amount to a type of government-by-surrogate, a shadow state.
There clearly are good reasons why many companies and schools demand vaccinations to rejoin workplaces or classrooms. As expected, those rules have been upheld, including a recent favorable ruling for Indiana University.
More concerning are those calls to use mandates to make life miserable for anyone who still has doubts. German Chancellor Angela Merkel told her citizens that they will have fewer “freedoms” until they consent. Some in the media have echoed these calls, and some private organizations are following the same strategy. The NFL, for example, has been openly making life “a living hell” for NFL players who prefer to be tested but not vaccinated.
For the most part, the motivation behind government and private mandates are hard to litigate. Courts tend to defer to measures ostensibly protecting others from risk of illness; even in criminal cases, the government has been allowed to conduct “pretextual traffic stops” if it can cite an objective basis.
There may be new legal challenges ahead, however. First, those with religious or medical concerns can challenge mandated vaccination programs. CNN’s Don Lemon this week called for barring unvaccinated people from offices and businesses, insisting “It has nothing to do with liberty. You don’t have the freedom and the liberty to put other people in jeopardy.” In truth, there are constitutional questions when you force people to take medications or vaccinations that violate their religious beliefs or that fail to satisfy a rational basis.
States also are moving to counter private mandates or to bar mandatory masking rules; Florida Gov. Ron DeSantis (R) just signed an executive order allowing parents to ignore masking orders for their children in the state’s public schools. That could force the hand of the Biden administration on implementing federal mandates or executive orders — a conflict that would raise core federalism issues.
The federal government is on shaky ground in mandating hood behavior or inactivity. In 2012 in NFIB v. Sebelius, Chief Justice John Roberts declared that “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”
The greatest danger with the coercion model is that it will further deepen our divisions and turn vaccine resistance into a type of patriotic resistance for some people. Recently, a shocking poll found that almost 50 percent of Republicans believe “patriotic Americans [might] have to take the law into their own hands.” The poll shows how many Americans are increasingly alienated from the government, the media and the established order. Conversely, some commentators on the left have declared that the unvaccinated are terrorists using “biological warfare” against the nation.
Threatening to make the lives of the unvaccinated a “living hell,” or isolating them from society, likely will do little to increase the level of vaccination — but it will do much to increase the level of alienation in our society.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.