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.
