The Morning Dispatch: Biden's Kind Of, Sort of Vaccine Mandate

Plus: The White House's hopes of renewing 2015's Iran Deal grow dimmer.

Happy Friday! Apologies for the lateness of this newsletter; somebody seems to have tripped over a cable down at Substack HQ this morning.

Quick Hits: Today’s Top Stories

  • President Joe Biden on Thursday announced a significant expansion of the scope of federal vaccine mandates, signing an executive order requiring COVID-19 vaccination for all federal employees—removing the previous alternative of regular testing—and instructing the Department of Labor to develop a rule obligating businesses with 100 or more employees to make full vaccination or weekly testing compulsory. Biden also said his administration plans to mandate vaccines for all those who work in hospitals or other medical facilities that treat Medicare and Medicaid patients.

  • The Taliban allowed a Qatari flight carrying about 115 Americans and U.S. permanent residents to depart Kabul on Thursday, the first such flight since U.S. forces completed their withdrawal last month. Another plane is expected to depart on Friday for those who weren’t able to reach the airport in time. The Taliban did not permit any Afghans without permanent residence abroad or a second nationality to leave the country.

  • The White House formally withdrew its nomination of David Chipman to lead the Bureau of Alcohol, Tobacco, Firearms, and Explosives on Thursday. President Biden blamed Senate Republicans for blocking someone he argued would have been an “exemplary” ATF director, but a handful of Senate Democrats opposed Chipman—a staunch gun control advocate—as well.

  • Attorney General Merrick Garland announced Thursday that the Department of Justice filed a lawsuit against Texas arguing its recently enacted Senate Bill 8 (which bans most abortions after six weeks) is unconstitutional. The lawsuit asks a federal court to issue a permanent and preliminary injunction “prohibiting enforcement of the statute against the State of Texas—including against the State’s officers, employees and agents, and private parties it has effectively deputized who would bring suit under SB8.”

  • The Food and Drug Administration said Thursday it was denying the application of more than 946,000 flavored “electronic nicotine delivery systems” to remain on the market, claiming the applications “lacked sufficient evidence” that the products’ benefits to adult smokers outweigh the public health threat they pose to children. The agency punted, however, on deciding whether larger vaping companies like Juul Labs can continue to sell their products in the United States.

  • Los Angeles’ Board of Education voted yesterday to approve a resolution ​​requiring all students age 12 and over to be fully vaccinated against COVID-19 in order to access in-person education. As of September 2, 63 percent of 12- to 17-year-olds in Los Angeles County had received at least one vaccine dose, according to the Department of Public Health.

Biden’s Mandate for Large Employers: Vaccines or Tests

Here’s what we had to say yesterday morning about the pandemic speech President Biden was set to deliver later in the day: “Barring something truly striking such as the administration trying to mandate vaccines itself—something Biden himself has previously and correctly said he does not have the power to do—it’s likely this latest effort will simply amount to more cajoling of other private and public entities to ramp up the vaccine pressure in their own spheres of influence.”

We forgot to knock on wood, so we can’t help but feel this is partially our fault. 

In his remarks yesterday, Biden announced a set of new policies that, while not quite amounting to a national vaccine mandate, easily come within spitting distance of one. Previously, the president had not gone beyond the bully pulpit in urging private employers to require their workers to get vaccinated. Now, however, the administration has instructed the Occupational Safety and Health Administration (OSHA) to craft a new emergency rule mandating that businesses with 100 or more employees require their workers to either get vaccinated or submit to weekly COVID tests—or face a $14,000 fine per violation. The government will also begin requiring healthcare workers in hospitals and home healthcare facilities that treat Medicare or Medicaid patients to receive the vaccines and remove the weekly testing option for most federal employees.

The coronavirus’ resurgence this summer—coupled with the Afghanistan debacle—has put a dent in Biden’s popularity, and the president’s frustration with the unvaccinated was evident on Thursday. “We have the tools to combat COVID-19, and a distinct minority of Americans, supported by a distinct minority of elected officials, are keeping us from turning the corner,” he said. “My message to unvaccinated Americans is this: What more is there to wait for? What more do you need to see?”

“We’ve been patient, but our patience is wearing thin,” Biden added. “Your refusal has cost all of us. So, please, do the right thing.”

These are—by the administration’s own acknowledgment—massive, sweeping changes. The White House estimates 80 million Americans are covered by the large-business portion of the order, with another 17 million affected by the requirement for healthcare facilities. Many large corporations—Google, Disney, Tyson Foods, Delta Airlines—have already implemented some form of mandate, but plenty have thus far abstained. 

Still, although there will be outliers, it doesn’t seem like corporate America is gearing up to go to war over the move. Business Roundtable, a D.C. advocacy group whose membership includes the CEOs of hundreds of America’s largest companies, said yesterday it “welcomes the Biden Administration’s continued vigilance in the fight against COVID.” If nothing else, the White House’s announcement provides individual companies political cover to implement stricter requirements.

But elected Republicans are outraged, even if top business leaders aren’t. Sen. Mike Lee accused the president of “wanton disregard for the U.S. Constitution,” calling him “a would-be autocrat” who “endangers the very fibers of this great nation.” Arizona Gov. Doug Ducey said in a statement that the COVID-19 vaccines are safe and effective, but argued that Biden’s “dictatorial approach is wrong, un-American and will do far more harm than good.” 

“How many workers will be displaced?” he asked. “How many kids kept out of classrooms? How many businesses fined?”

Based on the reaction to yesterday’s announcement, a shift in the news cycle is certainly a byproduct of the move. And if it baits Republicans into loudly defending the rights of the unvaccinated minority prolonging the pandemic, Biden might eke a narrow political win out of it. A recent Washington Post-ABC News poll found businesses requiring employees who come into work to be vaccinated had a net approval of +7 percentage points, up from -6 in April. A July Kaiser Family Foundation survey found almost the exact same split when asking whether the federal government should recommend that employers mandate vaccines.

But Biden’s decision is not without political risk. Just 16 percent of the unvaccinated people surveyed in that Washington Post-ABC News poll said they would get the shots if required by their employer, compared to 35 percent who said they’d ask for an exemption and 42 percent who claimed they would quit. If those numbers are anything close to accurate—all issue polling caveats aside—the president could be exacerbating a labor shortage that is already hindering the country’s economic recovery.

Republicans are champing at the bit to fight the Biden administration on this in court. But will a legal challenge be successful? Some might think it a no-brainer that a move so sweeping would be quickly overturned by the judiciary, particularly as the administration itself has until now said it could not and would not make vaccines mandatory. “That’s not the role of the federal government,” press secretary Jen Psaki said on July 23. “That’s the role that institutions, private-sector entities and others, may take.”

But the outcomes of the plethora of cases that are sure to arise are anything but a sure thing, considering just how much power Congress delegated to the executive branch on pretty much all matters pertaining to workplace safety when it created OSHA in 1971. Legal scholar and former adviser to Barack Obama Cass Sunstein laid out the situation well in a 2008 paper titled “Is OSHA Constitutional?”

Imagine that Congress creates a federal agency to deal with a large problem, one that involves a significant part of the national economy. Suppose that Congress instructs the agency: Do what you believe is best. Act reasonably and appropriately. Adopt the legal standard that you prefer, all things considered. Suppose, finally, that these instructions lack clear contextual referents, such as previous enactments or judicial understandings, on which the agency might build. … The core provision of one of the nation’s most important regulatory statutes—the Occupational Safety and Health Act—is not easy to distinguish from the hypothesized statute.

“I think its odds in court are pretty good,” Gabriel Malor, an appellate litigator based in Virginia, told The Dispatch. “Not only have we given OSHA a great deal of power, there aren’t a lot of good ways to claw that back without an act of Congress.”

Biden’s Iran Deal Hopes on the Ropes

While the events on the ground in Afghanistan have occupied the attention of the U.S. media and public over the last several weeks, a series of developments in Iran are threatening the administration’s diplomatic objectives with the terrorist-sponsoring state to Afghanistan’s west.  

In June, another hardliner president was inaugurated in Tehran when Ebrahim Raisi was sworn in. This week, further confirmation from the International Atomic Energy Agency (IAEA) that the Islamic Republic is undermining the United Nations agency’s monitoring mechanisms and stockpiling highly enriched uranium means hope is dwindling for proponents of reviving the Joint Comprehensive Plan of Action (JCPOA). 

According to two IAEA reports leaked to the Associated Press, Tehran has “severely undermined” the UN atomic watchdog’s ability to monitor its nuclear facilities since it suspended access to inspectors earlier this year. The report cited damaged, destroyed, and missing cameras and recording devices, which since February have been the IAEA’s primary means of keeping tabs on Iran’s enrichment activities. 

With its limited access, the organization surmised that Iran has stockpiled 10 kilograms of uranium enriched to 60 percent, up 7.6 kilograms since May, and 84.3 kilograms of uranium enriched to 20 percent, up 62.8 kilograms since June. In its original form, the JCPOA allows Iran to enrich uranium to a maximum of 3.67 percent. According to the Wall Street Journal, Tehran is ignoring requests by the IAEA’s director-general, Rafael Grossi, to visit the country.

Still, in a call with the European Council President Charles Michel, Iranian President Ebrahim Raisi insisted Wednesday the Islamic Republic has been transparent with the IAEA. 

“The serious cooperation of the Islamic Republic of Iran with the IAEA is a clear example of Iran’s will for transparency in its nuclear activities,” Raisi is quoted as saying on his website. “The important point in this regard is that although the Trump administration has left the White House and the Biden administration came to power, but in practice there has been no change in U.S. policy on Iran and the same approach and measures, namely sanctions and pressure against Iran remains.”

Supreme Leader Ali Khamenei adopted a similar position late last month, equating the Biden team’s foreign policy to a “predatory wolf” and that of former President Donald Trump. Efforts by the regime to ramp up enrichment and limit IAEA access appear to be aimed at pushing the administration into formalized sanctions relief through a restored nuclear deal.

“Too often, when engaging rogue regimes, the U.S. loses sight of the forest for the trees,” Michael Rubin, a former Pentagon official and resident scholar at the American Enterprise Institute, told The Dispatch. “For Biden's diplomatic team, simply continuing talks has trumped a meaningful solution as their primary goal.”

“Tehran sees a U.S. administration negotiating from a position of weakness—unwilling to enforce sanctions, unwilling to use military force to respond to attacks against U.S. forces and allies, and now distracted by the disastrous withdrawal from Afghanistan,” Richard Goldberg, senior adviser at the Foundation for Defense of Democracies and former National Security Council staffer under Trump, told The Dispatch.

“So the mullahs have every incentive to keep pushing the envelope,” he continued, “stonewalling investigations into undeclared nuclear material and sites, curtailing access for UN inspectors, and expanding its enrichment activities—while holding on to the strategic benefits of the nuclear deal, i.e. the sunset provisions that are enshrined in a Security Council resolution.”

When the Obama administration struck the Iran deal in 2015, it included a number of sunset clauses, many of which have already expired and others of which have fast-approaching deadlines. Even if the White House did manage to revive the original deal, in other words, its relative value diminishes with each passing day. By 2030, most of the deal’s limits on its uranium enrichment program will be fully lifted.

“I’m not going to put a date on it, but we are getting closer to the point at which a strict return to compliance with the JCPOA does not reproduce the benefits that that agreement achieved,” Secretary of State Antony Blinken—who once promised to deliver a “longer and stronger” deal with Iran—told reporters in Germany on Wednesday. “We’re not at that point yet, but it’s getting closer.”

The new Israeli government—amid the back-and-forth between the U.S., Iran, Russia, and European nations—has reiterated its commitment to the Middle East’s security, particularly given a perceived regional retreat by the Biden administration. “Unilateralism in self-defense will become the new normal,” Rubin said. 

“The world needs to stop Iran from getting a nuclear capability, no matter the price. If the world doesn’t do it, Israel reserves the right to act. The Iranians have never hidden the fact that they want to destroy Israel. That is an existential threat for us,” Israeli Foreign Minister Yair Lapid said during a press conference with his Russian counterpart yesterday. “Israel will not allow Iran to become a nuclear state. Or even a nuclear threshold state.” 

Worth Your Time

  • There is “surprisingly strong” Supreme Court precedent supporting vaccine mandates, Peter Canellos and Joel Lau note in this deeply researched essay, pointing to the body’s 7-2 decision in 1904’s Jacobson v. Massachusetts. “The question of whether [Americans’] freedoms include refusing a legally mandated COVID-19 vaccine, should any government implement such a requirement today, has yet to come before the Supreme Court — or any court,” they write. “But in the event that it does, the 116-year-old case brought by Henning Jacobson would be the standing legal precedent. In deciding whether the rules that the Jacobson decision rendered for smallpox would apply to Covid-19, today’s court would need to reckon with a different medical landscape, as well as the freighted politics of the moment.”

  • We’ve been sprinkling 9/11 remembrances into Worth Your Time throughout the week, and today is no exception. With the 20th anniversary of the attacks coming up tomorrow, take some time to read Tom Junod’s 2003 Esquire essay on the photograph of the World Trade Center’s falling man and the quest to determine its subject’s identity. “In the picture, he departs from this earth like an arrow,” Junod writes. “Although he has not chosen his fate, he appears to have, in his last instants of life, embraced it. If he were not falling, he might very well be flying. He appears relaxed, hurtling through the air. He appears comfortable in the grip of unimaginable motion. He does not appear intimidated by gravity’s divine suction or by what awaits him.”

  • With tens of thousands of Afghan allies seeking resettlement in the United States, the State Department last week released a list of places deemed suitable for Special Immigrant Visa recipients. None of California’s biggest cities made the cut due to housing costs. “The state’s median home price is now $800,000,” Darrell Owens and Muhammad Alameldin write in The Atlantic. “Those REFUGEES WELCOME signs you see on the lawns of homes in California's famously ‘progressive’ cities, such as Los Angeles and San Francisco? Only the wealthiest people can afford to live in many, if not most, of those neighborhoods, thanks to the lack of affordable and available rental housing.”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

  • In yesterday’s French Press(🔒), David commemorates the 20th anniversary of the September 11 attacks and explains why they did not unite the country for long. “We faced a challenge dangerous enough to command our attention, not dangerous enough to unite us, and complicated enough to defy easy, obvious answers,” he writes.

  • Thursday’s Advisory Opinions features Sarah and David discussing the latest developments out of Texas, an indictment related to the murder of Ahmaud Arbery, a death penalty case with religious liberty implications, and much more.

  • Slate’s Will Saletan returned to The Remnant yesterday to discuss ongoing pandemic challenges, the miraculous COVID-19 vaccines, and whether any one “side” truly got the past year and a half right. Plus, the 20th anniversary of 9/11.

Let Us Know

Which of these best describes your view of the Biden administration’s vaccine moves yesterday?

  1. Constitutional, and worth it to get more people vaccinated

  2. Unconstitutional, but worth it to get more people vaccinated

  3. Constitutional, but likely to lead the vaccine-hesitant to dig in further

  4. Unconstitutional, and likely to lead the vaccine-hesitant to dig in further 

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@charlotteUVA), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).