Federal government misses opportunity with unlawful private sector vaccine mandates
Earlier this month, the Biden administration mandated that employees at businesses with more than 100 workers be vaccinated or undergo weekly COVID-19 testing starting at the beginning of next year.
Just two days later, the U.S. Court of Appeals for the 5th Circuit halted the order in response to a lawsuit filed by a group of businesses and state attorneys general. The court upheld the pause Friday after an appeal from the Biden administration. Trade groups representing retail, trucking, and independent business have also filed suits of their own challenging the mandate.
Getting vaccinated is a good idea. But that doesn’t mean the federal government has the authority to order employees of private businesses to get the vaccine.
Given that drug companies are awaiting regulatory clearance to put therapies that have proven effective against COVID-19 on the market, there’s even less justification for the government to act extra-constitutionally. In October, Merck and Ridgeback Biotherapeutics released trial data showing that their COVID-19 pill reduces the risk of hospitalization and death from the virus by nearly 50%. Pfizer announced this month that its COVID-19 pill cut rates of hospitalization and death by almost 90% when taken in combination with another antiviral medication.
The success of these private-sector innovations led Dr. Scott Gottlieb, the former commissioner of the Food and Drug Administration, to predict the pandemic could be over by Jan. 4: the date Biden’s vaccine mandate would go into effect. But bureaucrats are once again standing in the way. While Merck’s pill received approval in the United Kingdom earlier this month, the FDA has yet to give it the green light. In fact, the agency’s advisory committee won’t meet to review Merck’s emergency use application until the end of November .
Pfizer’s medication, meanwhile, was so successful in clinical trials that outside experts recommended halting the study early and applying for FDA review. If the agency’s recent track record is any indication, it will be months before the drug is available to patients.
The Biden administration doesn’t have the power to mandate vaccination. But it can (and should) order regulators to work faster to get effective treatments to patients. That’s the kind of mandate we should all be able to get behind.