Policy Issues / Woke and Weaponized

Policy Brief: COVID Vaccine Mandates are Unwise, Unlawful, and Destructive

by CRA Staff

November 4, 2021

The entire rationale for the Biden vaccine mandate is fatally flawed as a matter of both public health and economic policy.

Summary:

The Biden administration’s rule mandating vaccinations and weekly COVID testing on businesses with more than 100 employees is unwise, unlawful, and destructive to American communities. The regulation, promulgated by the Occupational Safety and Health Administration (OSHA), has already generated a wave of private vaccine mandates by private employers. The regulation bypassed the traditional notice-and-comment process by issuing an “emergency temporary standard” for a medical procedure that is neither an emergency or temporary. 

The federal government does not have the constitutional or legal authority to mandate that private businesses require their employees to inject medicine into their bodies as a condition of employment. But this is not merely an issue of legality. The entire rationale for the Biden vaccine mandate is fatally flawed as a matter of both public health and economic policy.

Background: 

The widespread distribution of COVID-19 vaccines began in earnest in the spring of 2021 with an initial focus on the most vulnerable population groups, including senior citizens, the indigent, and those with preexisting conditions and comorbidities like heart disease and obesity. Currently, vaccines are available to all adults and children aged 5 years and older. The Food and Drug Administration (FDA) authorized the vaccine for children aged 5 and older on October 29, 2021, which quickly prompted the Centers for Disease Control and Prevention (CDC) to expedite a formal vaccination recommendation for that age group on November 2, 2021.

Despite past precedent of multi-year delays between the licensure of new vaccines and their addition to the childhood immunization schedule, local and state officials across the country are likely to begin mandating COVID-19 vaccinations for children 5 and older now that the FDA has approved them.  

The most popular COVID-19 vaccines administered in the United States use mRNA technology, a relatively new method of vaccine delivery that does not use live virus and instead attempts to teach healthy cells to make a protein designed to trigger an immune response to a particular virus. This type of vaccine has been in various forms of research and development since the 1970s, but the COVID-19 pandemic is the first time such a vaccine has seen wide scale implementation. This is due in large part to Operation Warp Speed, which was a government-wide effort implemented under the Trump administration to accelerate the development, testing, and production of a variety of vaccine candidates with minimal bureaucratic red tape. 

The imposition of a vaccine mandate, however, was something that even President Biden had previously claimed he would not support.

Now that President Biden has reneged on that position and is attempting to push the mRNA vaccines on all Americans, it is critical to evaluate what is known about the vaccines, their ability to inoculate against the virus, and the public policy premises on which vaccine goals are set. What follows are seven considerations about the vaccines, all of which argue against the merits of mandating them. 

#1: The Vaccines Do Not Stop the Spread of COVID:

Though the data available on the efficacy of the vaccines correlates to reducing severe illness, hospitalization, and death against both the alpha and delta variants of COVID-19, vaccine advocates have walked back claims that vaccination would eliminate the disease’s spread as the delta variant has surged through even substantially vaccinated populations worldwide. 

Data from state health departments, hospital systems, and health resource entities shows that the vast majority of hospitalizations and fatalities over the past six months have been among the unvaccinated. The hostility within parts of the medical community to early treatment upon diagnosis, favoring instead waiting until symptoms worsen substantially and require hospitalization, has contributed to overburdening our healthcare system as well as unnecessarily resulting in fatalities in both the vaccinated and unvaccinated populations. 

More recently, data is also revealing that an increasing number of those who are getting seriously ill are vaccinated. Instances of vaccinated people contracting COVID-19 are dubbed “breakthrough cases.” 

For example, in Florida, which currently has the lowest per capita case rate of any state, the vaccinated are accounting for up to 15 percent of COVID-19 patients in some hospital systems. An internal memo from the CDC that was published by the Washington Post in July revealed that an estimated 140,000 breakthrough cases per month were occurring in the US amid the summer surge.

A recent paper reprinted by the Oxford University Clinical Research Group revealed that vaccinated individuals who experience breakthrough cases of the delta variant shed roughly 250 percent more virus than the unvaccinated individuals who were infected with the initial alpha variant. It should be noted that unvaccinated individuals who contract the delta variant also shed similar viral loads. This suggests, however, that the virus is mutating in a manner that is more transmissible and that the mRNA vaccines do not prevent fully vaccinated individuals from getting sick and shedding significant amounts of the virus.

The Biden administration was slow to acknowledge the significance of breakthrough cases, possibly due to its efforts to cast vaccination as a path to ending the spread of COVID-19. The messaging incoherence significantly undermined public trust in the White House’s vaccination campaign. Americans found themselves urged, simultaneously, to take the vaccine so that they would not spread the virus to those around them and also urged to continue wearing masks despite their vaccination status. 

The uncertainties and nuance surrounding the actual state of knowledge about vaccine efficacy remain largely unacknowledged by public health officials, intent as they are to coerce Americans into deferring to the judgment of the Biden administration regarding personal health decisions.

#2: The Vaccines Have Side Effects with Varying Significance Based on Medical Health:

In addition to evidence of waning vaccine efficacy, it is clear that there are potential side effects of the vaccine for some who receive the shot. These range from such minor issues as fatigue to potentially fatal side effects like blood clots and myocarditis. The Johnson & Johnson vaccine was briefly paused in April 2021 due to 28 documented cases of blood clots. Both the Pfizer and Moderna vaccines have also shown 789 documented myocarditis cases, particularly in younger adults. These numbers only reflect documented patient reports and may not account for unreported side effects. 

Many Americans agree with public health experts that the risks of these side effects are outweighed by the benefits of vaccination. Many others, however, believe that the unprecedentedly rapid rollout of these novel vaccines justifies continued caution. The Biden administration’s vaccine mandate denies Americans the right to exercise that caution, effectively telling Americans who fear the downside risk of further adverse vaccine reactions that they do not deserve access to gainful employment.

While it is empirically true that COVID-19 can also cause fatal cases of myocarditis and blood clots, this juxtaposition between side effects of the vaccine and symptoms of COVD-19 suggests that mandating that everyone get vaccinated is a misguided approach as there are potential risks involved with inoculation as well as viral exposure. The takeaway from these realities is that patients should consult with their doctors to determine the best course of action regarding their personal health decisions. 

#3: COVID-19 Vaccines Are Not “Perfect” Like Many Existing Vaccines 

Unlike existing vaccines for things like measles, mumps, and rubella, which are regarded as “perfect” vaccines, the mRNA vaccines developed to provide protection against COVID-19 do not provide similar full-spectrum immunity or completely stop the transmission of the virus. 

Andrew Read, author of the 2015 study on the impacts of imperfect vaccination and an Evan Pugh professor of biology and entomology at Penn State University, explained the criteria for what constitutes a perfect vaccination: “When a vaccine works perfectly, as do the childhood vaccines for smallpox, polio, mumps, rubella and measles, it prevents vaccinated individuals from being sickened by the disease, and it also prevents them from transmitting the virus to others.”

Vaccines that do not both provide immunity to catching a disease and block transmission of the disease to others can be referred to as “leaky” vaccines. There is still a statistically significant chance that vaccinated individuals can catch the virus, transmit the virus, and die from the virus. In light of that, it may be more accurate to view the vaccine as one of many emerging therapeutics as opposed to an immunization that grants full protection. 

#4: Health Officials Increasingly Disagree About Recommending Additional Vaccines:

Currently, some 58 percent of Americans have received two doses of an mRNA COVID-19 shot. The CDC has recommended a booster dose for certain vulnerable populations, and some health officials, such as Dr. Anthony Fauci, are now pushing for a third shot to be incorporated into the standard vaccine regimen for the general public. This remains a controversial policy even within the medical community, as two top FDA officials recently resigned over the Biden administration’s political push for wide scale use of boosters before data had been properly reviewed by the FDA’s Vaccines and Biological Products Advisory Committee. 

When the committee finally met to discuss boosters, it rejected a proposal aimed at the general population in lieu of more targeted risk categories, despite urging from the Biden administration for a broader recommendation. In the words of Dr. Paul Offit, reflecting widespread non-expert sentiment that public health authorities have been overbroad in their prescriptions, “We’re being asked to approve this as a three-dose vaccine for people 16 years of age and older, without any clear evidence if the third dose for a younger person when compared to an elderly person is of value.”

#5: The Enthusiasm for Vaccines Ignores the Benefits of Natural Immunity:

A critical component missing from the public debate is whether or not natural immunity confers equal or perhaps greater protection than the mRNA vaccinations. Some elected officials, such as Sen. Rand Paul (R-KY), have repeatedly pressed health officials concerning the need to know what impact previous infection has on an individual’s immune system. The response to such questions has revealed an astonishing lack of both knowledge and intellectual curiosity. 

Dr. Fauci admitted during an interview that he simply does not have a “firm answer” on what kind of protection natural immunity provides. This is despite the fact that nearly 46 million Americans have already contracted COVID-19. As not every case is reported and a significant share of COVID positive cases are asymptomatic, 46 million is undoubtedly a conservative figure. At minimum, nearly 15 percent of the US population has been infected with COVID-19. Yet, the Biden administration’s mandate offers no accommodation to account for this enormous population of Americans, for whom the benefits of vaccination remain ambiguous. 

Public health officials should want to know what impact prior infection may have on an individual’s immune system, propensity to be reinfected, and ability to transmit the virus to others. To date, there has been no wide range longitudinal study embraced by the US federal government outlining the full effects of natural immunity.

A recently-released CDC study says that the mRNA vaccines provide more protection than natural immunity. The study looked at some 7,000 adults hospitalized with COVID-19 and presented data suggesting those hospitalized patients who were not vaccinated but had been previously infected were five times more likely to test positive than those who had been vaccinated. 

The study has serious limitations that even its authors acknowledge. These include:

• Potential for misclassification of patients and their source of immunity
• Inability to control for the likelihood of vaccinated individuals to get tested
• Potential for selection bias based on whether or not vaccination or previous infection influences likelihood of testing
• Limited focus on just nine states and usage of a statistical model that is subject to error if the authors misspecified parts of the data

In short, this CDC data might be helpful for determining the efficacy of natural immunity compared to vaccination, but its limitations leave many unanswered questions and suggest that additional studies need to be performed.

A highly-touted study out of Israel has shown those who are vaccinated are six times more likely to have a breakthrough case than those with natural immunity are to have a reinfection. This data begins to at least address the relative potency of natural immunity when it comes to future infection potential. The Israeli study also found that the highest level of protection is a combination of both natural immunity and vaccination.

The limited amount of information and data collected by federal health officials regarding natural immunity has contributed substantially to mistrust toward public health authorities and policies such as the Biden vaccine mandates. The Biden administration has made no effort to explain why an individual who already possesses immunity to infection should be required to take the shot.

#6: Vaccine Mandates are Premised on an Artificial Public Policy End-Game:

Public health officials have repeatedly emphasized the importance of “herd immunity” as a key element in ending the pandemic. Yet, there has been no official effort made to incorporate those with natural immunity alongside vaccinated individuals in the tally of those who have some degree of protection from COVID-19. Moreover, some public health officials, such as Dr. Fauci, have intentionally misled the public about their views on the thresholds required to achieve herd immunity, while others have conceded that COVID-19 is likely to become endemic regardless of vaccinations. The shifting goalposts on herd immunity have served to sow further distrust toward elected officials and public health bureaucrats. 

The United States has anywhere between 60 and 70 percent of its population with some degree of immunity. This percentage is a combination of the vaccinated population (roughly 190 million Americans) and the minimum 15 percent of the US population that has already had COVID-19 (some 45 million Americans) and takes into account some degree of overlap. Simply put, the vast majority of Americans now have some measure of protection against COVID-19. 

Additionally, when one looks at the case fatality rate of those under the age of 18 (0.01 percent), it is clear that COVID-19 poses relatively little risk to this population group. Despite this low risk, FDA approval of childhood vaccinations is almost certain to kickstart a new wave of debate over mandatory vaccinations of this population. 

Given the declining rate of vaccinations, it is reasonable to be concerned about the potential for the Biden administration to use childhood vaccinations to boost the topline vaccination number. Children, particularly those 12 and under, comprise a significant percentage of the remaining unvaccinated population. And, according to the CDC, at least 2.7 million kids under the age of 12 have already been infected with the virus. 

This leads to another outstanding issue, which is whether or not herd immunity to COVID-19 has been reached and whether or not an endemic version of the virus affects the public policy endgame.

For months, Americans have been told that the herd immunity threshold was between 60 and 70 percent. Dr. Anthony Fauci, who admitted to intentionally changing that estimate, then claimed it could be as high as 90 percent in what appears to be ever shifting goal posts. Aside from creating obvious public mistrust, the constant change in herd immunity thresholds is concerning because it bears heavily on whether public health officials know what metric is necessary to recognize the pandemic’s end or manifest any willingness to get there.

Relatedly, highly vaccinated states are currently experiencing some of the highest case rates per capita in the nation. For example, at the time of publication, New Hampshire has the 6th highest number of cases per capita, despite having the 3rd most-vaccinated population per capita. Several questions naturally follow in light of this reality:

• Is herd immunity actually possible with COVID-19? If so, what percentage of the population needs to have protection and why are public health officials not counting the vaccinated and those with natural immunity as part of that assessment? 
• Are the mRNA vaccines actually effective at mitigating viral transmission? If so, then why such high case rates in heavily vaccinated populations?
• Is the protection conferred with mRNA vaccines waning faster than the protection conferred by natural immunity?

#7: Vaccine May Leave People Vulnerable to Newer Variants:

Another lingering issue regarding the virus and the vaccines is whether or not the mRNA shots are potentially reducing long term societal protections from COVID-19. Specifically, do the mRNA vaccines’ existing effectiveness against the alpha and delta variants, whatever that may be, present a scenario that could make large segments of the population vulnerable to mutations and future variants of COVID-19? The existing data we have shows a relatively significant reduction in protection for the vaccinated against the delta variant in comparison to the alpha variant. 

The Pfizer vaccine went from roughly 94 percent effectiveness against symptomatic infection against alpha to as low as 40 percent against delta. Moderna saw its efficacy reduced by half against delta. Will the emerging mu variant or lambda variant or a future zeta variant cause similar immunity gaps and vaccine efficacy loss among vast swaths of the population? 

This is not to definitively state, by any stretch, that the existing mRNA vaccinations are leading to more virulent variants of COVID-19. There is no hard evidence of that. However, concerns over the reduced efficacy from alpha to delta remain valid because a scenario wherein a vaccine may provide relatively strong personal protection against significant sickness or death, but does not stop a person from getting infected and does not stop viral transmission to others, could very well lead to a long-term “leaky” vaccine scenario. 

There is recent history that shows how a leaky vaccine could greatly enhance the deadliness and infectiousness of a disease over time. What started out as a mild, but highly contagious, virus in chickens known as Marek’s disease became more virulent and dangerous after wide scale implementation of a leaky vaccine. Although the Marek’s vaccine does not prevent transmission by or infection in its hosts, the mRNA COVID vaccines do provide statistically significant reductions in transmissibility and serious infection. The result of the Marek’s leaky vaccine made the disease even more dangerous than it was prior to the development and implementation of the vaccine. 

A comparison of chickens and people may seem questionable at a glance, but the concept of a leaky vaccine bolstering the very disease it is designed to mitigate is a prevailing concern. After all, there is a long history of animals being used in the development and testing of medicines and treatments for humans. The mRNA vaccines were tested in both mice and primates. 

All of these considerations ultimately emphasize the importance of the patient-doctor relationship to determine what is in an individual’s best interests with regard to the vaccine. Furthermore, while these lingering issues form the foundation of health-focused concerns about the vaccine mandate from the administration, substantive opposition to such an unlawful edict is far broader in its scope.

Vaccine Mandates are a Society-Wide Disaster in the Making: 

The Biden administration’s proposed mandate on employers is estimated to affect nearly 80 million working Americans, which constitutes roughly 50 percent of the existing workforce. The mandate is both illegal and bound to have a devastating impact on an economy already suffering from rising inflation, labor shortages, and supply chain woes. 

There is zero constitutional authority for the Biden administration to force private businesses to force their employees to get vaccinated as a prerequisite to work. While relatively less egregious, but no less important, there is also no statutory basis for the regulation. Even scholars who have entertained the possibility that such a mandate might survive judicial scrutiny have noted that the limitations of OSHA’s authorizing statute will present special challenges given the breadth of the mandate—challenges that will be raised only after the emergency temporary standard is implemented.

Furthermore, the concerning compliance of some of America’s largest employers should not go unnoticed. Among those companies who appear all too eager to carry out the Biden administration’s illegal bidding are United Airlines, General Electric, Goldman Sachs, and the corporate arm of McDonald’s. 

Following President Biden’s September 9th mandate announcement, some 25 percent of companies have now instituted a vaccine mandate. Prior to the announcement, only 16 percent of companies had enacted such mandates. Alarmingly, despite labor shortages and a perilous economy, companies have willfully imposed such policies despite data showing they could lose up to 8 percent of their employees due to vaccine noncompliance. 

Privately, many companies remain reluctant to carry out the administration’s vaccine edict because they believe the courts will overturn OSHA’s rule. Some companies, like Southwest Airlines, initially announced they would comply and enforce the Biden administration’s demands but eventually rescinded their plans to put unvaccinated employees on unpaid leave after severe blowback from both within and outside the company. A federal judge recently halted United Airlines’ plans to implement their vaccine mandate after employees filed a lawsuit, further underscoring the divisive nature and shaky legal ground of the administration’s rule.

But it is not just the private sector bracing for the destructive impact of the administration’s mandate plan. Vaccine measures are already inflicting harm on communities at the local level all across the country. 

In Seattle, over 170 police officers and firefighters were not allowed to go to work following implementation of that city’s vaccine mandate. It remains to be seen what will ultimately become of these first responders. However, this decision will likely result in longer wait times for 911 calls and higher crime rates because there are fewer law enforcement officers to cover the city. 

New York City, which is currently in the throes of a massive surge in violent crime, will soon terminate up to 30 percent of its police force if they refuse to get the shot. Other cities like Chicago and San Francisco have also implemented similar reckless policies. Over one third of Chicago police officers have refused to disclose their vaccination status despite the mayor’s deadline, and up to five percent of San Francisco police officers are facing termination over their city’s vaccine mandate. 

Some hospital systems are also facing nursing and staffing shortages due to vaccine mandates. One of the most high profile instances occurred recently in Houston, Texas, when Houston Methodist forced over 150 nurses, technicians, and hospital staff to quit or be terminated when they would not get vaccinated. It stands to reason that any policy that results in fewer medical professionals during a pandemic is probably not a wise one if one is concerned about health outcomes.

Vaccine Mandates and the Military:

Vaccine mandates also threaten to add additional strain to our nation’s armed forces at a time when our enemies are on the move. As of early October, an estimated 27,000 Marines, 48,000 soldiers in the US Army, 15,500 airmen in the US Air Force, and 7,000 sailors in the US Navy could be forced out of the military if they do not comply with the Department of Defense’s vaccination mandate by December 15, 2021. Some active duty members of the armed services have already filed lawsuits to halt the Department of Defense’s vaccine order. 

The government’s assertion of a compelling interest in forcing young men and women who are in peak physical condition to receive the shot is strained. According to the Department of Defense, nearly 250,000 members of the military have already been infected with COVID-19, resulting in just 70 total deaths over the past 19 months. 

Proponents of the military vaccine mandate routinely argue that service members already receive up to two dozen injections when they sign up to protect their country. This is true. However, the majority of these vaccinations have been approved and in use for decades while typically covering illnesses presenting a far more significant risk to the servicemember population. Given the relatively low risk of COVID to our young troops, who currently face a case fatality rate of 0.03 percent, there does not appear to be a compelling governmental interest in forcing such mandates.  

If one is interested in ensuring force levels remain stable and threat deterrence capabilities remain intact, enacting policies that could significantly reduce the overall number of our best combat soldiers is foolish and destructive. 

The Path Forward:

The destructive nature of the Biden administration’s OSHA vaccine mandate on private businesses is all-encompassing. It undermines the rule of law, it flagrantly operates outside the bounds of the US Constitution, it further deteriorates workforce participation and economic output, and it reinforces ongoing policies that will reduce the number of first responders necessary to both protect the American people and keep civil society functional. 

Therefore, policymakers, employers, and citizens alike should meet this proposal with a simple act of civil disobedience: noncompliance. The threat of significant financial penalties from the federal government is real, but so too is the damage that will occur should businesses and citizens comply with such an unlawful measure.

Employers must defy these mandates on their businesses, with full confidence that such edicts are lawless, unconstitutional, and should be roundly rejected by the courts. Private businesses should not engage in authoritarian behavior that makes them agents of an unchecked and power hungry federal government bent on imposing its control on vast swaths of the population and workforce. 

Lawmakers have a responsibility to signal states’ refusal to comply as well. Nearly 30 states have passed important legislation that protects businesses from frivolous COVID-19 related lawsuits. These liability protections are critical for providing small businesses with the assurance and certainty that keeping their businesses operational in the midst of this pandemic will not result in economic blowback from those seeking to profit off the pain that the virus and mandates have inflicted. Some of the states that have passed such measures include Alabama, Mississippi, Georgia, Florida, Texas, and Montana. Every state should follow suit, so that the small businesses that form the backbone of our economic engine can continue to function without fear of civil suit and legal reprisal. 

Furthermore, state legislators should emulate, as best they can, the Florida formula. Florida’s approach, while criticized by the political corporate press, has proven to be effective. The state suffered a 2.9 percent loss in GDP last year during the pandemic, coming in well below the national decline of 3.5 percent. It is currently among the fastest growing state economies in the nation, all while keeping schools open for in-classroom learning and passing legislation that bans vaccine passports. 

Florida currently has the lowest COVID-19 case rate per capita of any state, ranks 42nd in hospitalizations, and ranks 17th in per capita fatality rate.

Governor Ron DeSantis (R-FL) recently announced a special legislative session starting November 15, 2021 to counter the federal vaccine mandate push. Among the policies in the special session call:

• Legislation banning employers from imposing vaccine mandates on their workers
• Legislation that removes liability protections from employers who proceed with vaccine mandates on their employees
• Legislation that directs the state to oversee occupational safety and health, effectively nullifying the OSHA standard

State lawmakers should follow Florida’s example and look to implement similar policies that stand against and thwart authoritarian vaccination mandates on their citizens.

Federal lawmakers should consider passing legislation that implements COVID-19 liability protections for businesses and firms that contract with the federal government. 

Additionally, Congress should prepare to use the Congressional Review Act (CRA) to check the Biden administration. Members of Congress should file a resolution that repeals the OSHA mandate. A CRA resolution is privileged and requires only simple majority support in both the US House and Senate for passage, thereby bypassing the legislative filibuster and 60-vote threshold in the Senate. 

While it is a near-certainty that President Biden will not sign this resolution into law, it is critical that lawmakers in Washington D.C., be put on the record when it comes to their stance on this unconstitutional rule. Furthermore, congressional lawmakers should make funding to the Department of Labor contingent on the withdrawal or repeal of the OSHA rule. 

A combination of mass noncompliance from citizens and employers, pushback from state officials, and aggressive action from Congress will ensure such unlawful and divisive mandate measures are ultimately defeated.

Conclusion: 

Given the lingering questions regarding the efficacy of the vaccine, the protection afforded by natural immunity, and whether or not herd immunity against COVID-19 is attainable, public health officials and policymakers should work to provide answers instead of attempting to mandate that the entire US population receive one particular type of medicine. Aside from the clear illegality of such a mandate, the devastating impact such measures are having on public health, economic performance, rule of law, and public trust all require opposing such mandates. 

The American public rightfully distrusts much of what they hear from so-called “experts” and elected officials. Instead of proposing harmful and divisive policies that effectively divide Americans into separate castes, lawmakers and businesses should focus on policies that mirror the hippocratic oath of “do no harm.” 

There are logical and legitimate reasons for individuals to decide not to take the vaccine. There are substantive and self-evident reasons for citizens to oppose a vaccine mandate. As America moves forward and emerges from the COVID-19 pandemic, policymakers should focus on restoring public trust in health officials, improving access to a variety of therapeutics to mitigate COVID-19’s more serious effects, developing higher-quality vaccines that afford actual lasting immunity to the virus, and enacting measures that protect the liberties of all Americans instead of stripping them of their unalienable rights in a bid to divide and control.