When he announced this fall that he was going to require most American workers to be vaccinated against the coronavirus or face weekly testing, President Biden was pretty confident this would survive any legal challenges from Republicans. “Have at it,” he said.
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But since then, his vaccine-or-testing policy for American workers has hit a number of hurdles: Aspects of it have been held up by the courts, a majority of U.S. senators just voted to stop it, and a Democratic governor expressed reservations about it.
Here’s what’s going on and what that could mean for Biden’s push to get millions more Americans vaccinated, as the new omicron variant is spreading, perhaps more quickly than any other, and there’s evidence that vaccines can help stop it.
The legal battle
This is by far the most difficult hurdle facing Biden’s vaccine policy right now, because the courts are the most realistic path for his opponents to stop the vaccine requirement entirely. These battles are just getting started, but so far, conservatives are having quite a bit of success.
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In November, a federal appeals court that is one of the most conservative in the nation blocked Biden’s vaccine requirement from going into effect as planned in January, in response to a lawsuit from Republican-led states. One of the judges called the policy “staggeringly overbroad.”
Then, this week, two federal courts blocked other aspects of the policy: one requiring health-care workers to be vaccinated (with no testing opt out) and another for federal contractors.
At this point, the only vaccine policy of Biden’s that remains in place is requiring federal workers and those in the military to be vaccinated or risk losing their job. The White House said that 9 in 10 of these workers are vaccinated.
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Despite these setbacks, the Biden administration is still bullish that it has the legal right to require workers of large private companies (100 or more employees) to get vaccinated or get tested weekly. And it should be, said Barbara McQuade, a former U.S. attorney in the Obama and Trump administrations. Other courts, going back more than a century to the smallpox outbreak, have upheld government vaccine mandates that are stricter than the one Biden is trying to impose. “Legally, it’s really strong,” she said, of Biden’s case. “It’s just a matter of political pushback.”
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This summer, a federal appeals court ruled that Indiana University could require its students to be vaccinated, writing: “Vaccination requirements, like other public health measures, have been common in this nation.”
This could go all the way to the Supreme Court, as both the Biden administration and Republican state officials seem determined to battle it out.
The battle in Congress
This one is much more symbolic. Despite public health evidence that vaccine requirements help stop the spread of the coronavirus, and despite the fact many conservative states have even stricter vaccine policies for other diseases, Republicans have almost universally opposed requirements for coronavirus vaccinations, framing it as an issue of individual choice. Business groups have also feared this could cost workers their jobs and make life harder for small businesses.
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To that end, Republicans in the Senate forced a vote this week to repeal Biden’s vaccine requirements. Surprisingly, it passed. Democrats narrowly control the Senate chamber, but two Democrats — Sens. Joe Manchin III (W.Va.) and Jon Tester (Mont.) — voted with all Senate Republicans to get rid of the mandate. That was all it needed to pass, 52 to 48. Manchin argued that the requirement was too heavy-handed for government. “We should incentivize, not penalize, private employers,” Manchin said in a statement.
“I’m not crazy about mandates,” Tester said.
It’s a political win for Republicans, but that’s probably all it will be. The Democratic-controlled House of Representatives almost certainly won’t bring this up for a vote. And even if it did, and even if it passed the House with a handful of skeptic, centrist Democrats, Biden would veto it, and Congress doesn’t have the votes to override it.
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But as Biden argues that his vaccine policy is necessary to protect Americans, it’s not a good look for him that the Democratic-controlled Senate just passed a bill to stop it from going into effect.
The battle in the states
Republican-led states are making it well known that they oppose Biden’s vaccine policy. No Democratic-led state is joining in on the court action. But one prominent Democratic governor has openly expressed reservations about it.
Michigan Gov. Gretchen Whitmer (D) took aggressive measures at the outset of the coronavirus pandemic in 2020 to curb its spread. But this week, she told local business leaders that Biden’s vaccine policy is “going to be a problem” for the state, because it could lose workers over it, reports the Daily News in Michigan.
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Whitmer wasn’t explicitly opposing the policy, and she said she’ll enforce it if it’s held up by the courts. But she was sympathizing with business owners that requiring workers to get vaccinated or tested is going to come at a cost. She said: “We’re an employer too, the state of Michigan is. I know if that mandate happens, we’re going to lose state employees. … We’re waiting to see what happens in court. But we have a lot of the same concerns that you just voiced, and it’s going to be a problem for all of us.”
In the coming weeks, Biden’s vaccine policy for American workers could still go into effect. But it’s taking a lot of hits in the meantime.