Disunity of the Highest Order

I watched President Biden’s speech on additional COVID measures on September 9th and boy do I have thoughts. It’s like somebody in the White House back in July received a cheat code for how to lose the House and probably the Senate in 2022 and then the Presidency in 2024. Between Afghanistan and this speech, I find it very hard to see a 2022 election where Democrats are not hammered. If you didn’t catch the speech or see the outrage, then here are the six main points at this link.

One of the six points is especially controversial. President Biden is directing the Department of Labor (DOL) to mandate that companies with 100 or more employees either mandate vaccines or conduct weekly testing. Along with mandating that essentially anyone that works with the Federal government in any form or fashion gets the vaccine. Although, he excluded the United States Postal Service. At first this seemed to be a concession to their union which is a large donor. Now, it is possible that due to a separate statutory structure they will fall under the proposed rule from the DOL.

I’m not going to argue about vaccines or vaccine mandates. I would be very surprised if anyone who reads this has not already made up their mind on the vaccine. I lack the eloquence or the scientific jargon to convince someone either way. What I want to talk about is the political implications of this speech which, as you might’ve guessed, is lots of lawsuits.

Potentially, the lawsuit exposes companies to very unpleasant decisions. Key employees may not want the vaccine, which means the company must provide the tests. Now despite the promise of more widely available COVID tests it could still be a financial burden. Plus, employees might look to take their talents to a smaller company not under these rules, or to freelance their skills.

Also, multiple governors and companies have announced that they will challenge the constitutionality of the proposed rules, even to the “gates of hell.” I would imagine you’re looking at a 5-4 Supreme Court decision that DOL/OSHA does not have the authority to mandate vaccines through an executive order. Which leaves two interesting questions. Will the rules be under a temporary injunction until put into the Supreme Court decision? And will the Court say that Congress could legislate such a mandate?

There might be a time where the rule is being enforced because the courts let it go into effect until the Supreme Court ruling OR the Supreme Court decides it is constitutional. Companies have already stated they will purposefully non-comply with the rule. While it might be a small number total, it will likely create huge headaches for the agencies looking to enforce the rule. They will be filing lawsuits on any potential discrimination between companies or ambiguous wording in the text. So, lots of legalese and court dates and appeals.

Another potential consequence is that growing companies will stop at 99 employees and use contractors to continue to grow. I personally experienced a similar side effect under Obamacare. The language hadn’t been clarified so they weren’t sure at what point seasonal workers needed healthcare—after a certain number of yearly hours were met or just six months full time. They chose the narrower application and released seasonal employees at six months. In that situation, there was only about seven, maybe eight, months of seasonal work and then 4 months of nothing so it was understandable.

Obamacare is perhaps the best example of what this proposed rule will accomplish. Obamacare made a lot of conservatives mad because it was passed in the middle of the night without a single Republican vote in support. It looked like the first step towards socializing the health care system, and it barely survived its legal challenges before the Supreme Court. The second and third order consequences meant that it was the only major policy that progressives got during President Obama’s 8 years. It infuriated a group of people that had strong opinions about politics but hadn’t been very involved. Those people then organized and got Congressmen and Senators elected who obstructed everything they possibly could. It might’ve cost President Obama re-election, except that he still embodied hope and had personal charisma off the charts.

President Biden has neither of those going for him. Almost every time he speaks, he manages to make a verbal gaffe. He is not even half the public speaker President Obama is. Also, I guarantee you that already consultants are making attack ads about Afghanistan. Come 2024 every YouTube video and commercial will have ads of him checking his watch while the caskets of US servicemembers killed in the Kabul suicide bombing were transferred.

Three messaging issues are key here. First, it removes the carrot from the equation and leads with all stick. Second, it shows a complete lack of desire for any unity. President Biden ran on a message of being less divisive and brining normalcy back to D.C. Yet, this and his actions on Afghanistan are highly divisive. Third, his rhetoric and delivery do him no favors. A good rule of thumb is to not talk badly about people who have the capacity to retaliate. His speechwriters need to be fired.

Polling does suggest a vaccine mandate like the one proposed by President Biden has support in key swing states.

So, on the face of the issue, it is hard to believe it will lead to blowback. However, it creates an enthusiasm gap. Generally, the people opposed to vaccine mandates (vaccinated or not) have shown they are very passionate about the issue, while those in support are lukewarm. I may be wrong; that is the danger of making political predictions. But those opposed to Democrats and President Biden are going to have an easy time fundraising and recruiting volunteers to get their message out.

Politically, Biden’s speech came with a cost and will make willfully unvaccinated people more resistant. It has already changed from being a health decision to sticking it to the man. Whether my predictions are true or not I am uncomfortable with public health being used as a justification for broad safety rules. Public health is such a broad category that it can be bent to justify almost any law. Some countries in eastern Europe have used public health justifications to discriminate. Authoritarianism is built upon the precedents of well-intentioned policy.

My parting thought is one that occurred to me in the shower last night. The administration tried to put in place a second eviction moratorium even after the Supreme Court said the extensions to the original moratorium were unconstitutional and that further extensions needed to be legislated by congress. The second eviction moratorium was struck down. The administration admitted that part of their calculus was that it would take a few weeks to be declared unconstitutional. I wonder if this is the same tactic. Even though the rule will likely be declared unconstitutional, it could lead to some companies mandating vaccines and tests early—using fear to try and get a few people off the fence to get the vaccine. If so, the costs likely outweigh the benefits.