By Noah Rothman
Tuesday, October 12, 2021
If you’re going to adopt a position that’s out of step
with the public, you had better be able to articulate it clearly. It should be principled
and, therefore, not beholden to shifts in public opinion. The right’s general
distaste for popular but violative public-sector COVID-vaccine mandates on
private individuals and enterprises used to be just such a principled position.
You might disagree with that view, but at least you could understand it and
accept that it was offered in good faith. Regrettably, that’s changing.
On Monday evening, Texas Gov. Greg Abbott heralded the right’s evolving views on
vaccine mandates when he issued an executive order “prohibiting vaccine
mandates by ANY entity” in his state. The order states that no institution, public or private,
“can compel receipt of a COVID-19 vaccine by any individual, including an
employee or a consumer.” This represents an about-face away from the governor’s
previous position—one predicated on a conservative principle of
non-interference in the affairs of private entities and individuals insofar as
the law allows.
Earlier this year, Texas’s state legislature banned
businesses from requiring proof of vaccination from its customers, and Abbott
himself banned public entities that “receive public funds” from imposing
mandates. Texas’s limits on vaccination mandates weren’t unique. The state is
one of eight GOP-led states banning employers from requiring proof of
vaccination, but Texas’s elected officials did their best to strike a balance
that favored liberty. As one Abbott spokesperson told the Texas Tribune, there would be no impositions on
private firms from Austin. “Private businesses don’t need government running
their business,” Abbott’s representative insisted.
Those timeless conservative principles haven’t changed in
the intervening weeks, but the politics around vaccine mandates have. Last
month, Joe Biden declared that all businesses with more than 100 employees must
ensure that their employees are vaccinated or tested for COVID regularly.
Otherwise, they risk running afoul of the Occupational Safety and Health
Administration. Because the physics of national politics now demand that one
party’s initiative be met with equal and opposing force by their adversaries,
Biden’s decree has led GOP-governed state legislators into a scramble to
neutralize his executive order even if it comes at the expense of personal
freedom.
There are plenty of legitimate concerns around the
unanticipated consequences arising from vaccine mandates. Conservatives are
obliged to be mindful of them if only because no one else will. Using OSHA’s
authority to create vaccination status as a condition of private employment in
any medium-to-large business likely exceeds the regulator’s authority. The
carveouts for religious objectors and people with medical exemptions are not
being uniformly observed and have already led federal judges to preliminarily bar the enforcement of certain local
vaccine mandates. And, of course, the threat posed by such a regime is that it
will be disparately enforced. That disparate
enforcement will be reserved primarily for the professional classes,
leaving some behind in a world typified by substandard services and abusive
employers.
To the extent that these concerns privilege the liberty
of private enterprises and individuals over the priorities of the state, they
are a coherent response to the overweening but (crucially) well-intended
Democratic response to a real and exigent emergency. They are coherent and
defensible. These principles guided the Republican lawmakers who sought to
preserve their states residents against infringements on their liberty by
panicked politicians and energetic bureaucrats.
What Greg Abbott has done, by contrast, is as much of an
infringement on individual liberty as any OSHA Emergency Temporary Standard. In
a game of maximalist cultural conflict, the nuanced approach Abbott had
previously taken just doesn’t cut it. In shifting away from edicts that limit
government’s capacity to interfere in private affairs to edicts that limit the
freedom of private individuals and enterprises, however, Abbott is tacitly
conceding crucial ground to the left. No longer are we witnessing a battle of
competing principles. We’re privy only to a contest of rival cultural
affinities, each willing to wield the power of the state to impose their visions
of social organization on you.
Principled conservatives don’t have a horse in that race.
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