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Constitution allows Biden to mandate COVID vaccine. Federal government can do even more.

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President Joe Biden
President Joe Biden

Over the course of the COVID-19 pandemic, each state has taken its own approach on masking, vaccine distribution and education.

As the new school year gets underway, New York is requiring all students, teachers and staff in public and private schools to wear masks, but Florida Gov. Ron DeSantis is doubling down. Last week, he filed an emergency appeal to ban school mask mandates as several districts ignore his order.

And sure enough, different approaches have netted different results. A peer-reviewed study published in the American Journal of Preventive Medicine of the early pandemic months (beginning in July 2020) has shown greater COVID-19 death rates in states with Republican governors. Over seven days ending Thursday, Florida has had nearly 10 times the deaths per 100,000 people as New York.

As one thinks back to the pre-pandemic debates about other political topics, such as abortion, we see a striking inversion. “Pro-life” and “pro-choice” have new meanings. In Republican states, wearing a mask or getting vaccinated is now framed as a personal choice, regardless of its impact on the lives of other people.

In his remarks to the nation last week on this "pandemic of the unvaccinated,” President Joe Biden placed the blame squarely on “elected officials actively working to undermine the fight against COVID-19.” Officials such as DeSantis.

It is true that our constitutional design allows that states can be the laboratories of democracy, but the slogan is incomplete. It comes from a 1932 case, where the Supreme Court struck down a state regulation that it thought arbitrarily required vendors of ice to obtain licenses, unlike vendors in other industries. Justice Louis Brandeis dissented, arguing: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

That last part is key. While the Constitution allows states to govern their internal affairs, it also provides mechanisms to protect everyone else from their poor decisions.

Biden is doing just that, leveraging the power of the federal government to protect citizens from the impacts of the ill-informed policies that are enabling the virus to continue mutating and spreading throughout the population. Enacting a new emergency rule requiring employers with 100 or more employees to ensure their workforces are fully vaccinated or tested weekly is a big step in the right direction. But it isn’t nearly big enough.

Biden needs to go further

For instance, the Commerce Clause provides that Congress may regulate business that crosses state borders. While each state can take its own approach to an issue like handguns (with states like Texas proud to not even require a permit), in all states it is a federal crime to bring a gun past the security gates at an airport.

If nothing else, COVID-19 is proving that we are an interconnected country. With more than 1 million travelers already this year, airlines are taking infected people and efficiently recirculating them around the country, so they inadvertently infect more and more people, including in states that are earnestly trying to fight the pandemic.

The influence of travel on the spread of disease is not unique to COVID-19. Following the 9/11 attacks, scientists analyzed the consequences of the pause in airline travel, and found the patterns of seasonal flu mortality changed substantially. Likewise, in 2015, a known case of measles at Disneyland was spread to several other states. The dynamics for COVID-19 are surely similar.

Accordingly, the Centers for Disease Control and Prevention has issued a mandate for all airline travelers to wear masks. It is time to think similarly about vaccinations, where the federal government’s authority is just as clear. With the Pfizer vaccine now fully approved by the Food and Drug Administration and the Moderna and Johnson & Johnson vaccines likely to follow, any remaining questions about safety and efficacy have been settled.

Biden can protect holiday travelers

Well ahead of the holiday travel season, the Biden administration should announce that United States airline travelers will be required to present proof of vaccination.

Such an airline vaccination mandate will have a few predictable effects. First, it will cause people who would otherwise fly unvaccinated to get vaccinated, so they can see their friends and family members, enjoy their vacations or do their work.

Second, it may cause others who insist on being unvaccinated to stay at home, and thereby reduce the risk to everyone else.

Third, it may reassure vaccinated folks who are hesitant to travel that it is indeed safe, which supports the airline and tourism industries.

Arguably, airline travel is just one of many ways in which poor policy choices in places like Florida can be contained. Buses, trains, hotels, theme parks and resorts are additional options.

The Biden administration, other state governors and corporate leaders can also steer meetings and other travel away from states where the risk is highest. But in the short term, airports are a tangible first step, given the security apparatus already in place.

Americans in red states and blue states share many things in common, but they should not have to share a deadly virus due simply to the poor policy choices of elected officials.

Christopher Robertson is N. Neal Pike Scholar and Professor at Boston University School of Law. He is the author of "Exposed: Why Our Health Insurance is Incomplete and What Can Be Done About It."

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This article originally appeared on USA TODAY: COVID: Biden should force air passengers to show proof of vaccination

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