The waning efficacy of vaccine mandates

Predicting Supreme Court decisions might be a risky business, but the court hardly sounded enthusiastic about the Biden administration’s Occupational Safety and Health Administration (OSHA) rule mandating either vaccination or weekly testing for businesses with 100 or more employees in oral arguments on Friday.

The OSHA rule was under scrutiny in one of two mandate-related cases heard that day. The other deals with the requirement for healthcare employees at facilities that receive Medicare and Medicaid funding to be fully vaccinated.

While liberal justices seem to be persuaded by the logic of the OSHA mandate, the court’s conservative majority were skeptical that it was in OSHA’s power to enact such a sweeping rule. (The less contentious and narrower second mandate, pertaining to healthcare employees, got a less hostile reception.)

Of the legislation Congress passed 50 years ago to bring OSHA into existence, Chief Justice John Roberts said. “I think it’s certainly hard to argue…that it gives free reign to the agencies to enact such broad regulation that was certainly unfamiliar to Congress in 1970.”

The hearings also included moments that called into question the justices’s reputations as some of the best and brightest minds in Washington. Take, for example, Justice Sonia Sotomayor’s claim that more than 100,000 children are “in serious condition,” many of them on ventilators, because of Covid. This is a wild falsehood from someone tasked with making an important ruling on America’s pandemic response. The correct figure for children in hospitals with Covid is around 3,000; the number in a serious condition is lower still.

The full OSHA measures, which would affect roughly 80 million Americans, come into effect on February 9, but the court will likely have its say before then.

The legality of vaccine mandates might depend on a constitutional question regarding the powers of an executive agency, but the wisdom of such measures depends on epidemiological logic. And the path of the pandemic means the case for obligating vaccination is weaker than when the rule was first proposed in the fall.

While the vaccines remain extraordinarily powerful, life-saving weapons against serious illness from Covid-19, the recent rise of breakthrough cases certainly suggest that they do not prevent infection against omicron, the variant now responsible for the vast majority of cases in the US, to the degree they did against previous versions of the virus.

The logic of the mandates rests on the idea that vaccination doesn’t just protect you, but others too, and that they do so by preventing or drastically reducing the ability of vaccinated people to spread the virus. But we don’t yet know how good the vaccines are at limiting spread, or how long-lasting those effects might be. What seems clear is that the idea that the vaccines might stop infection in the vaccinated except in very rare cases — something that seemed a real possibility earlier in the rollout — is a pipe dream. As new variants and waning efficacy change the vaccine’s ability to limit transmission, they also change the cost-benefit analysis of the mandates.

Legally dubious and not the epidemiological slam dunk they once appeared, vaccine mandates might just be an idea whose time has been and gone.

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New year, same Biden

Fired up by his January 6 anniversary speech last week and frustrated that his legislative agenda is stuck, Joe Biden is ready to embrace a fiery new tone this year. The New York Times reports that “for some of Mr Biden’s Democratic allies, the change in tone is a welcome shift from the dominant theme of the president’s first year, when he more often focused on his desire to unify the country and struggled to negotiate with members of his own party.”

Among Biden’s unifying actions last year: accusing Republicans of “Neanderthal thinking” on the pandemic and ushering in “Jim Crow on steroids” with changes to voting laws. I dread to think what the more partisan iteration will look like.

The president also wants to spotlight Republican obstructionism and highlight the ways in which the GOP might undo his achievements were they to gain control of the House and the Senate. These arguments might be more potent if Biden had managed to pass his main spending bill — or not failed to do so because of Democratic opposition. But given the president’s stalled agenda and inability to get his own side on board, voters will surely see this line of attack for what it is: malarkey.

Mistaken identity at Le Dip

Justice Sonia Sotomayor already caused a considerable stir with her Covid misinformation during oral arguments at the Supreme Court (see above). By Saturday morning, a Politico Playbook tip, complete with apparent photographic evidence that the judge had dined at popular DC spot Le Diplomate with Nancy Pelosi and other senior Democrats on Friday, sent Washington watchers into a spin. Sotomayor had been the only justice not to attend the court’s proceedings in person, instead Zooming in because of the pandemic. But what looked like a world-beating example of Covid hypocrisy was soon exposed as a case of mistaken identity. The woman whom the tipster had thought was Sotomayor, the back of whose head can be seen in the picture, was in fact Iris Weinshall, wife of Senator Chuck Schumer. The Playbookers issued a swift, red-faced apology.

Kamala utters the M-word

“Malaise” is a loaded word in Democratic circles, evoking as it does the low point of Jimmy Carter’s four years in power. Though Carter’s famous malaise speech didn’t actually include the word, it became a shorthand for his response to an energy crisis and inflation as well as a general listlessness and self-doubt that had come to dominate the national mood.

Given the ample parallels between the present day and that period, senior Democrats should probably steer clear of the M-word. Step forward Kamala Harris. Not one to miss out on the chance to step on a banana skin, the vice president said in an interview with PBS’s Judy Woodruff on Friday that she “fully appreciates that there is a level of malaise.”

What you should be reading today

Dominic Green: Antony Blinken’s soundtrack of failure
Daniel McCarthy: The next chapter in American foreign policy
Alexander Larman: Sidney Poitier refused to be defined by race
Steven Erlanger, New York Times: US and Russia will discuss European security, but without Europeans
Poy Winichakul, Washington Monthly: Georgia Republicans are scheming to subvert the will of voters
Ryan Streeter, National Review: The four bobs – and the economic importance of self-starters

Poll watch

President Biden Job Approval
Approve: 42.1 percent
Disapprove: 54.6 percent
Net approval: -12.5 (RCP Average)

Which problems would you like the US government to work on?
The economy: 68 percent
Covid-19: 37 percent
Immigration: 32 percent
Other health care: 30 percent (AP-NORC)

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