Wednesday, December 8, 2021
Dec. 8, 2021

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Estrich: Leave policymakers to do job


There are two questions relating to vaccine mandates that have become dangerously confused.

The first question is whether, as a matter of public health and safety, vaccines should be mandated — for students and teachers, for first responders, for essential workers, for indoor events, for outdoor events, for gyms and restaurants and beauty salons. And on and on.

I think I know the answer to the first question. I think anyone but a knucklehead recognizes that the risk of a vaccination is a lot lower than the risk of death from COVID-19. But I’m not a doctor or an expert in public health. I think I know the answer, and so does Kyrie Irving, the NBA star who is reportedly yet to be vaccinated. One of us is wrong. I think it’s him, but I’m quite sure he would disagree, and no one has ever accused me of being an expert in matters of physical conditioning or infectious diseases.

The second question is easier, at least for me. It’s a question of law: not what the law should require, but what public health authorities are allowed to require; not what the courts should favor if they were legislators, but what judges should allow legislators and executives to mandate.

Traditionally, the question of the appropriate scope of public health and safety regulation was formally a question of federalism, that is, of how power should be divided between the state and federal government. I say formally because “federalism” has always been a sort of Trojan horse. No one comes out and says children should work 14-hour days any more than they came out against civil rights; they say, “states’ rights,” which is how President Franklin Roosevelt framed the case for court packing, a case that might have succeeded had the court not backed down at the critical moment.

In a federal system, it has been argued, the states play a valuable role as laboratories for experimentation and change. So California enacts tough vaccine mandates — and has the lowest COVID-19 case rate in the country — and Texas would prefer to let people have the freedom to kill themselves and their friends and neighbors, which is just what is happening.

Notwithstanding decades of precedent — since the New Deal cases of the 1940s and the Civil Rights decisions of the 1960s holding that the federal government has broad power over public health and safety — courts in the very red states are finding “liberty” not in the rights of women to control their bodies but in the rights of men to avoid a vaccine that can save their lives and those of others.

Since when has selfishness become a constitutional right?

It is hard to think of any precept, any set of values, more basic than that which calls on all of us to live by the Golden Rule: to treat each other as we would want to be treated if none of us knew where we would find ourselves in the pecking order. We would want to be treated fairly, as if we were the ones, or our children were, who were immunocompromised.

That is what it means to be part of a community. Infections don’t respect state lines or geographic borders. Our fates are tied together.

It is not the job of the judge to substitute her judgment as to the best policy for that of the legislature or the governor or the president. It is her job to enforce the law, which is to say, to let the policymakers do their jobs.