By JOHN F. BANZHAF. Originally published at ValueWalk.
Court Blocks Biden‘s War on Covid – Now He Can’t Keep Doing Nothing; A Vaccination-To-Fly Rule Avoids Legal Problems – And Enjoys 95% Support
Q4 2021 hedge fund letters, conferences and more
Court Blocks Biden’s War On Covid
WASHINGTON, D.C. (January 13, 2022) – The U.S. Supreme Court has just blocked, indefinitely if not permanently, President Joe Biden’s most powerful weapon for protecting Americans from Covid; an OSHA rule which mandates that large companies require their over 84 million employees to be vaccinated or undergo frequent and expensive tests.
In light of this devastating and most recent court defeat, widespread and growing public dissatisfaction with Biden’s handling of the pandemic generally and with his CDC more specifically, and this ever growing and most recent surge in new Covid cases, hospitalizations, and employee absences, Biden can’t continue to do nothing – nothing but begging people to be vaccinated which obviously isn’t working, or pledging to provide more tests which likewise would not slow the disease, says public interest law professor John Banzhaf.
With the failure of this key program to get more Americans vaccinated, which is the only way to actually effectively fight the pandemic, Biden should look to other countries which require vaccinations to do many things and go many places.
He should especially consider issuing a new rule in an area where he has the clear legal authority to act, and where there is clear precedent in similar rules adopted successfully by both Canada and France; rule requiring airline passengers to be vaccinated, argues Banzhaf, whose prior suggestions for fighting the pandemic are now in effect.
Biden should – as the only effective and logical backup plan, and to fulfill his promise to use all the executive powers he has to protect the public – consider a rule which largely avoids the many legal issues which his other rules have raised; a requirement which has worked well without problems in at least two countries, and is much less intrusive than vaccine requirements now in effect in many U.S. cities and many dozens of foreign countries, the professor argues.
Banzhaf suggests a rule, supported by Dr. Anthony Fauci and by many other experts, as well as overwhelmingly by the public, requiring adult airline passengers to be vaccinated, or to provide proof of a recent negative COVID test.
Such a rule would provide very substantial additional protection for all airline passengers, especially from the added threat of the highly transmissible Omicron variant, while also creating a very strong and much needed incentive for millions more Americans to become vaccinated.
Vaccine Mandate
Challengers to the large-business vaccine-or-test mandate argued persuasively that it went far beyond OSHA’s authority over sudden emergency grave dangers in the workplace, and was primarily adopted only to pressure about two-thirds of the private sector to get vaccinated so as to reduce risks largely occurring beyond workplaces.
But a federal agency which has required passengers to wear cloth masks while flying – which even the CDC now agrees are largely ineffective, especially against the Omicron variant – in order to protect other passengers from becoming infected with Covid can certainly adopt a vaccination requirement which many experts say would provide much greater real-world protection for the same at-risk population from exactly the same danger, suggests Banzhaf.
Indeed, an agency which has adopted without significant challenge now-well-accepted rules requiring airline passengers to wear masks, and to refrain from smoking for lengthy periods or from consuming their own alcoholic beverages, and also requiring them to provide government issued photo identification, not carry many arguably dangerous items with them, subject themselves to intrusive inspections, and to obey all crew instructions or face prison, can certainly also require vaccinations, the law professor argues.
Unlike the OSHA “ultimate work-around” – White House chief of staff’s Ronald Klain’s characterization of the OSHA rule which Chief Justice John Roberts seized upon during oral arguments – the federal government has been regulating the conduct of airline passengers to protect other flyers from airborne medical risks since the early 1970s, notes Banzhaf, who was primarily responsible for the rules restricting and then banning smoking aboard passenger aircraft.
Other regulations – e.g., requiring masks to be worn, banning many arguably dangerous objects because they might be used as weapons, prohibiting consumption of personal alcohol beverages, limiting “lascivious” behavior aboard aircraft, and mandating compliance with all crew instructions upon pain of imprisonment – make it even clearer that adopting rules that airline passengers much follow to protect fellow flyers is a central focus of the agency, not an unintended “work-around” suddenly dreamed up by the Biden administration to get around a Congress reluctant to act.
Such a rule would also fall squarely within the federal government’s authority to regulate interstate commerce, would not intrude upon what many might see as the prerogatives of individual states, and would be far less intrusive than the OSHA and HHS rules which threaten the very employment of most Americans, and which therefor cannot be avoided or circumvented by those opposed to being vaccinated.
Requiring Vaccination To Fly
In contrast, most American can choose not to fly, just as many may now choose not to go to venues which require proof of vaccination to enter, such as colleges and universities, sports and entertainment venues, and even restaurants.
Moreover, the adoption of a shot-to-fly rule would now be more than justified, legally as well as in public opinion, by the greatly increased risk posed to airline passengers the highly contagious Omicron variant.
Indeed, since this greatly increased risk is just beginning to be recognized by medical experts, it provides a more than sufficient legal justification to issue additional protections for airline passengers (e.g. better masks and vaccinations) on an emergency basis, says the law professor.
While requiring all but the youngest passengers to be fully vaccinated would provide the greatest protection to other flyers, such a rule could do one or more of the following if necessary to reduce public opposition, the professor suggests:
- Apply the rule only to adults, thereby exempting older children eligible to be vaccinated, but who fly less frequently and among whom vaccination rates are much lower than with adults.
- Provide, at least initially, that passengers need to have received only one shot – thereby permitting them to be eligible to fly quickly in the event or an emergency or for other sudden need.
- Treat passengers who have recovered from Covid the same as those who have been vaccinated – as dozens of European and other countries already do in enforcing their often-even-more-intrusive vaccination requirements.
Banzhaf notes that Canada and France have long required airline passengers to be vaccinated even on domestic flights, and that proof of a recent and expensive negative Covid test is required on most international flights.
Since airlines and the TSA already store large amounts of information about passengers, and based upon experience with Canada’s and France’s airline passenger vaccination requirements, experts have debunked the argument that requiring a showing of vaccination status would unduly delay flights or be unreasonably burdensome, Banzhaf maintains.
Especially since Fauci has added to his support to the growing demands for a vaccination-to-fly rule, many other experts, as well as dozens of editorials, have called for the same requirement.
For example, the Boston Globe recently argued: “It’s time to require vaccinations for domestic flights. If proof of vaccination will soon be required in restaurants, bars, and nightclubs in Boston (as it already is in other cities), why not airplanes?”
Banzhaf adds that such a rule was supported by about 95% of respondents in a recent survey.
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