Jan 12, 2022

Biden's vaccine mandates.

Biden's vaccine mandates.

The Supreme Court heard oral arguments on Biden's vaccine mandates.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

President Biden's vaccine mandates hit the Supreme Court. Plus, a story about what you're buying.

Photo: New York National Guard
Photo: New York National Guard


Last week, I started working on a traditional newsletter about gerrymandering. But the deeper I went, the more quickly it turned into a longer, more intricate piece that felt fitting for a Friday edition. So we'll be releasing a deep dive on gerrymandering this Friday — the history, how it works, and what things look like heading into 2022. Unlike most Friday editions (that are for subscribers only), we'll be making this post available to everyone. But if you'd like regular access to our subscribers-only content, or just want keep our work ad-free and investor-free, please consider become a Tangle member:

Reader feedback.

Ned, writing from Hilton Head Island, SC, responded to yesterday's newsletter on Kazakhstan and said "I think it's still extremely unclear what actually happened. It's starting to look more and more like protests that were co-opted for an intra-elite coup. Eurasianet has done some really great reporting on this... in my opinion, the interesting thing here is where the people who started the violence came from, because the rumor mill has been significant, and Tokayev has been pushing the line that it was foreign terrorists from the Middle East or Afghanistan to justify the use of force."

Nikolay, who said he is originally from Kazakhstan but has lived in the U.S. for 10 years, wrote "One point that you didn’t cover and things that can be very impactful from geopolitical standpoint is that Kazakhstan is very susceptible to terrorist islamic movements like ISIS. So while I am not for Russia sending their troops over to Kazakhstan, I can see where it might be useful to avoid infiltration by radical extremists groups."

Quick hits.

  1. The Justice Department is opening a new unit to investigate domestic terrorism, and it warned Congress of an "elevated" threat from violent extremists inside the U.S. (The unit)
  2. Democrat Sheila Cherfilus-McCormick won Tuesday’s election to fill Florida’s vacant 20th Congressional District seat, bringing Democrats back to the 222-212 seat majority they held after the 2020 elections. (The victory)
  3. In a win for Republicans, a judge upheld the new Congressional map drawn in North Carolina. (The map)
  4. In a speech from Atlanta, President Biden urged Congress to take up voting rights legislation, warning against forces that attempted a coup "by sowing doubt, inventing charges of fraud, and seeking to steal the 2020 election from the people." (The speech)
  5. Inflation rose again in December, with prices up 7% from this time a year ago and 0.2% from November. (The numbers)

Today's topic.

The Covid-19 vaccine mandates. On Friday, the Supreme Court heard arguments in two cases: The first was the National Federation of Independent Business v. Department of Labor, which is a challenge to the Biden administration’s vaccine-or-test mandate that was instituted by the Occupational Safety and Health Administration (OSHA). The mandate requires employees at companies of at least 100 people to be fully vaccinated against COVID-19 or be tested weekly and wear masks while in the workplace. The rule impacted about two-thirds of all private sector workers, more than 84 million people.

The second challenge is Biden v. Missouri. In that case, the Biden administration's nationwide mandate for all health care workers at facilities receiving federal funding is being challenged. The Department of Health and Human services instituted a rule that all workers that participate in Medicare or Medicaid programs must be fully vaccinated unless they qualify for a medical or religious exemption, according to SCOTUSblog.com. More than 10 million workers are impacted by this rule.

In the challenge to the OSHA rule, a majority of the justices seemed skeptical of the rule’s legality, indicating that while states may be able to institute mandates, federal government agencies must clear a much higher bar. Justice Neil Gorsuch pointed to the fact that states usually set public health requirements. "If there is an ambiguity, why isn't this a major question that therefore belongs to the people's representatives in the states and in the halls of Congress?" he asked. Chief Justice John Roberts said it was “hard to argue” that a 50-year-old law giving OSHA general powers also gives the agency "free rein" to issue a policy of this scope and magnitude.

Justice Elena Kagan, meanwhile, argued that administrative agencies like OSHA that have deep experience with the complexities of public health and economic tradeoffs should make the decision, not unelected judges. These agencies, she said, are best suited to act in the public's interest and can be held accountable politically. Justice Breyer noted that with Covid-19 cases at an all-time high and hospitals struggling to keep up with a rush of patients, OSHA had the authority to act in the public's best interest.

In Biden v. Missouri, the court seemed more open to the new Biden rule. Justice Sotomayor said the rule fell within the federal government's purview to impose conditions on the funds it gives out. Chief Justice Roberts seemed to agree. Jesus Osete, the Missouri deputy solicitor general challenging the rule, said that if it went into place rural America would face a crisis of health care worker shortages. Kagan argued that the HHS had taken that into account, and that some workers may quit but others may come back because they would feel safer at work.

Justice Alito, meanwhile, seemed opposed to the mandate, asking if the states understood that by accepting Medicare and Medicaid funding they'd be subject to the vaccine requirement.

Both cases were brought to the Supreme Court on an emergency basis and were fast-tracked for oral arguments. The justices are determining whether the mandates can remain in place while challenges to their legality continue. Because the cases weren't ruled on by January 10, the Biden administration's OSHA mandate is now in effect.

Ironically, Covid-19 was also present in the courtroom in other ways. Justice Sotomayor presided over the case remotely because she has lifelong diabetes and is considered high-risk for Covid-19, and two of the six lawyers challenging the mandates had to participate by phone because they contracted Covid-19.

SCOTUSblog has more here and here.

Below, we'll take a look at some reactions to the oral arguments from the right and left, then my take.

What the right is saying.

  • The right argues that it's federal overreach to issue such a broad mandate, and well beyond the purview of OSHA.
  • They say Congress or the states have much better legal standing to impose mandates.
  • They argue that upholding the mandates would give the federal government far too much power in the future.

In NBC News, Ilya Somin said the oral arguments exposed the Biden administration's overreach.

"The administration’s desire to increase the vaccination rate is laudable," Somin said. "But the government must respect legal limits on its power... The court should uphold the policy imposing vaccination requirements on health care workers. But the regulation governing large employers is legally dubious and would set a dangerous precedent if upheld.

"The broad large-employer mandate effectively gives presidential administrations a blank check to control nearly every aspect of every workplace in the country, going beyond the authority given to the executive branch by Congress. It also goes against long-standing legal doctrines that constrain presidential authority and limit power grabs. By contrast, the health care worker requirement is much narrower, well within the scope of existing law and does not threaten to set a problematic precedent. It also focuses on protecting a group — hospital patients and nursing home residents — who are especially vulnerable and often cannot effectively protect themselves against the virus."

In the Des Moines Register, Greg Ganske said the Supreme Court should stop the OSHA mandate.

"Many legal scholars see no statutory authority for OSHA to issue vaccine mandates," Ganske said. "Under the Constitution’s spending clause, Congress could provide financial incentives to states to enact mandates. It might also be able to regulate vaccine requirements related to interstate travel, but these actions would face legal challenges based on the 10th Amendment’s prohibition on forcing states to use their own resources to carry out federal policies.

"The federal court challenge to Biden’s vaccine employer mandate is not about whether vaccine mandates are a good idea or whether states can impose a mandate or whether individual employers can impose a mandate. This case is about whether the federal government through OSHA can issue a nationwide mandate. This case is much larger than the issue of the vaccine mandate," he added. "It will affect the future authority of regulatory agencies, as versus the legislature, to make law. I believe that the Supreme Court will decide that federal agencies can’t exercise powers not granted by Congress, especially when they ignore proper administrative process."

The Wall Street Journal editorial board said the mandate just ran aground.

"The Chief brought up a re-tweet last year by White House chief of staff Ronald Klain hailing the mandate as the 'ultimate work-around.' 'I mean, this has been referred to the approach as a work-around. And I’m wondering what it is you’re trying to work around?' the Chief asked, adding it is 'hard to argue' that Congress has given such 'free rein' to OSHA, the agency that promulgated the mandate," the board wrote.

Solicitor General Elizabeth Prelogar "failed to explain why OSHA never bothered to calculate all of the costs of its mandate, as opposed merely to the presumed health benefits," the board added. "That’s something every agency is expected to do in normal rule-making. An Administration isn’t supposed to 'work around' the law, a point the Court may soon underscore."

What the left is saying.

  • The left argues that the mandates are on strong legal footing given the extraordinary nature of Covid-19.
  • They say striking down the mandates would be disastrous for the country.
  • They argue that Biden still has other options to increase vaccine rates if the mandates are struck down.

In The New York Times, Wendy Parmet said the "answer should be easy."

"The Biden administration carefully tied the mandates, which include exceptions for people with religious or medical exemptions, to sectors over which the federal government has clear constitutional authority," she wrote. "In addition, Congress granted OSHA and the C.M.S. explicit authority to issue regulations to protect health and safety in their respective spheres. And the ability of vaccines to reduce coronavirus transmission and lessen severe disease is well documented.

"Although the legal case for the regulations seems strong, as several appellate courts have found, the government’s victory is not assured. Over the past year, the Supreme Court’s conservative majority has shown little inclination to sustain Covid mitigation measures," she added. "If the Supreme Court adopts a similar view, the results could be disastrous. History has repeatedly shown that many of the country’s most pressing health problems, from pollution to pandemics, cross state lines and cannot be addressed by states alone. States also lack the resources to respond adequately to natural disasters or finance the rapid development and distribution of new vaccines. Indeed, when crises hit, the public, even in Republican-led states, usually looks to Washington."

In MSNBC, Dr. Kavita Patel said the Biden administration still has options if the vaccine mandates get struck down.

"Though widespread vaccination among health care workers is the best solution, if a mandate isn’t allowed, the administration can entice health care operators with other incentives," Patel wrote. "For example, a Medicare health care quality measurement program called the Merit-Based Incentive Payment System (MIPS) is almost universally seen as more burdensome than productive in improving the quality of health care for patients. A recent study found that many medical practices have had to hire more full-time staff and cut back on direct patient care to fulfill reporting requirements that generally consist of little more than clicking boxes inside the electronic health record. The program has not resulted in better care and might even result in worse care for marginalized populations. Granting practices an exemption from that requirement, even temporarily, in exchange for higher vaccination rates would most likely be met with incredible support.

"Requiring practices to be transparent about their vaccination rates could also be an effective tool," Patel added. "Sunlight has proven to be the best disinfectant in other situations. For example, posting of hygiene ratings in grades A to F in California resulted in a significant decrease in food borne illnesses... A more contentious but more consequential action could be establishing the right of patients to demand a vaccinated health care worker."

Ruth Marcus said the case is really about whether the federal government can protect us or not.

"Must the federal government stand by helplessly when red-state governors, rather than adopting vaccine and mask mandates, instead block them — harming their own residents in the face of a pandemic that has already cost more than 810,000 lives?" she asked. "Can federal agencies impose mandates using laws that were hardly designed with a global health crisis in mind? Or must regulators wait for that authority to be made clear by Congress, which has proved itself increasingly incapable of governing?

"The Biden administration justified the action under the Occupational Safety and Health Act of 1970, which allows OSHA to issue emergency rules when it deems them 'necessary' to protect employees from 'grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.' It doesn’t seem like much of a textual stretch, if a stretch at all, to consider the coronavirus an 'agent' that poses 'grave danger' to workers," Marcus wrote.

My take.

As always with SCOTUS cases, there are two threads to delineate here. First is the legal argument: What looks likely to happen and does that seem to be the judgment that makes the most legal sense? Second is the outcome argument: In this case, would it be good or bad for the country if SCOTUS struck down the vaccine mandates?

On the legal side, it seems most likely that the court is going to strike down the OSHA mandate but uphold the health care worker mandate. This is what I predicted when the OSHA rule was announced, despite a lot of people thinking otherwise at the time. In July, I said "a vaccine mandate will not (and shouldn’t) come from the federal government." I was wrong that it wouldn't, but still believe it shouldn't.

What I do believe is that employers have the right to mandate vaccines or regular testing as a condition of employment. That means private companies should be allowed to mandate vaccines and the federal government should be able to mandate vaccines for employees or facilities it is funding (in this case, the health care workers in hospitals getting Medicaid and Medicare funding).

For those of you already typing in about my ambivalence on Covid-19 and how I'm happy to see millions of Americans die from a contagious virus, let me put it this way: In a vacuum, I wouldn’t be that uncomfortable with this administration issuing a mandate for this vaccine because of this virus, but that doesn't mean I want the precedent set for future governments to have a similar power. If you support the Biden administration implementing this vaccine mandate and can't understand why I don't, consider this rather crude hypothetical:

Imagine in three years President Trump is re-elected with full control of Congress. Imagine in early 2025, a new sexually transmitted disease is running rampant across the U.S., and instead of being especially devastating for the elderly, obese, and immunocompromised (like Covid-19) it is especially devastating for young, sexually active women. Now imagine the Trump administration successfully brings forward a vaccine in just 12 months, and they want to mandate it for all Americans in order to stop the spread of this virus, which is becoming a drag on society, posing risks to fertility rates, and endangering anyone who participates in sex (many have argued Covid-19 is becoming a drag on society and endangering anyone who participates in society).

I imagine you’d feel less comfortable with this, and I wouldn't want that hypothetical administration to have the legal power and precedent to mandate this hypothetical vaccine. There are some obvious counterpoints there: You might argue Covid is spread far more easily than an STD is, so a vaccine for the STD wouldn't be necessary because people could just avoid sex or practice safe sex to avoid transmission. But this is really not unlike the anti-vaxxer arguments now ("just stay home or wear a mask if you're scared").

The difficult truth is the mandate is dangerous not because vaccinating millions of people in America would be dangerous, but because giving the government agency to mandate vaccines is dangerous for future generations (in my opinion).

On the outcome side, I think it's worth looking at this in the most holistic fashion possible, too. With the Omicron surge already happening, nearly 86% of adults with at least one dose of the vaccine, over 82 million people who have gotten Covid-19, and the fact vaccines are apparently not sufficient for protection against being infected (though they are still creating a lot of protection against death or serious illness), I have a hard time seeing the justification for a vaccine mandate in this climate.

Add on top of that the downsides: That we're already experiencing labor shortages, that health care workers are increasingly difficult to hire (and many have immunity from previous infections), and that the mandates extend the federal government's reach in a way that makes me deeply uncomfortable... I wasn't on board before, and I'm not on board now.

Early on in the pandemic, in the pre-vaccine world, comparing Covid-19 to the flu was absurd. The result of the pandemic has proven this absurdity: The flu doesn't kill 800,000 people over the course of two years, and it certainly doesn't infect the number of people Covid-19 just did. Nor does it upend the global economy and overwhelm the healthcare system the way it has.

But, in the post-vaccine, post-mass infection stage we're living in, everything seems to be pointing to a flu-like Covid-19 response ahead. One where we have seasonal vaccines (like the Omicron-specific vaccine Pfizer just announced) that try to limit the seriousness of Covid-19 for people who get it. With the combination of vaccine prevalence and people who have gotten Covid-19, on top of milder variants like Omicron in the future, this is probably the stage we're about to enter. And, perhaps there is a world in the future where certain seasonal Covid-19 vaccines are required for public schools or certain employers — there would be a lot more precedent for that, and if a future variant was very dangerous for kids, I’d probably support it.

For whatever it's worth, Biden can still celebrate his mandate. The announcement of the mandate was followed by a rise in vaccination rates, and mandates generally have produced that outcome across the globe. This is good, because I still believe it's a great thing if a higher percentage of America (and the world) is vaccinated. Again: You shouldn't take health care advice from a politics newsletter, but I think it is clear being vaccinated decreases your odds of being seriously ill or dying from Covid-19. That doesn't mean the federal government should be able to mandate vaccines, though, and it certainly doesn't mean such a broad mandate in this Covid-19 world, the January 2022 one, is the right thing to do.

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Your questions, answered.

We're skipping today's reader question to give our main topic some extra space.

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A story that matters.

The New Normal is a data visualization that shows the things Americans search for online, and how it reflects what Americans are buying — and what has changed — in the Covid-19 era. According to Axios, who helped publish the report, searches are up for "computer accessories, fax machines, scanners, computer monitors and printers... We are googling more often for nails, skin care, hair care, massages and loungewear. With more flexible time at home, we have been searching for items associated with home improvement and car upkeep: car parts, power tools, home and garden organization and decor." Tequila and sweatpants are up, too. Coffee and eggs remain unchanged, while paper towels and bleach spiked at one point but have returned to pre-Covid levels.


  • 86%. The percentage of U.S. adults who have at least one dose of the Covid-19 vaccine.
  • 95%. The percentage of Americans 65 and up who have at least one dose of the Covid-19 vaccine.
  • 74%. The percentage of all Americans who have at least one dose of the Covid-19 vaccine.
  • 761,122. The average number of new daily cases of Covid-19 in the U.S. over the last week.
  • 1,736. The number of Covid-19 deaths in the U.S. yesterday.

Have a nice day.

A new study from UCLA has documented laughter in at least 65 species of animals. “That list includes a variety of primates, domestic cows and dogs, foxes, seals, and mongooses, as well as three bird species, including parakeets and Australian magpies," Jessica Wolf writes at UCLA Newsroom. From Open Culture: "Yes, rats laugh. How do scientists know this? They tickle them, of course, as you can see in the video just above. (Rat tickling, it turns out, is good for the animals’ well being.) The purpose of this experiment was to better understand human touch — and tickling, says study author Michael Brecht, “is one of the most poorly understood forms of touch.” You can see a rat laughing for yourself here.

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