On Sunday, The Wall Street Journal posted an op-ed piece about vaccine mandates. The editorial pointed out some very obvious questions.
The article notes:
Federal courts considering the Biden administration’s vaccination mandates—including the Supreme Court at Friday’s oral argument—have focused on administrative-law issues. The decrees raise constitutional issues as well. But there’s a simpler reason the justices should stay these mandates: the rise of the Omicron variant.
It would be irrational, legally indefensible and contrary to the public interest for government to mandate vaccines absent any evidence that the vaccines are effective in stopping the spread of the pathogen they target. Yet that’s exactly what’s happening here.
Both mandates—from the Health and Human Services Department for healthcare workers and the Occupational Safety and Health Administration for large employers in many other industries—were issued Nov. 5. At that time, the Delta variant represented almost all U.S. Covid-19 cases, and both agencies appropriately considered Delta at length and in detail, finding that the vaccines remained effective against it.
Those findings are now obsolete. As of Jan. 1, Omicron represented more than 95% of U.S. Covid cases, according to estimates from the Centers for Disease Control and Prevention. Because some of Omicron’s 50 mutations are known to evade antibody protection, because more than 30 of those mutations are to the spike protein used as an immunogen by the existing vaccines, and because there have been mass Omicron outbreaks in heavily vaccinated populations, scientists are highly uncertain the existing vaccines can stop it from spreading. As the CDC put it on Dec. 20, “we don’t yet know . . . how well available vaccines and medications work against it.”
The article notes that mandating a vaccine to stop the spread of a disease requires evidence that the vaccines will prevent infection or transmission.
The article also notes:
As the World Health Organization puts it, “if mandatory vaccination is considered necessary to interrupt transmission chains and prevent harm to others, there should be sufficient evidence that the vaccine is efficacious in preventing serious infection and/or transmission.” For Omicron, there is as yet no such evidence.
The article concludes:
It is axiomatic in U.S. law that courts don’t uphold agency directives when the agency has entirely failed to consider facts crucial to the problem. In many contexts courts send regulations back to the agency for reconsideration in light of dramatically changed circumstances. If the agency’s action “is not sustainable on the record itself, the proper judicial approach has been to vacate the action and to remand the matter back to the agency for further consideration,” as the U.S. Circuit Court of Appeals for the District of Columbia put it.
Neither HHS nor OSHA ever considered Omicron or said a word about vaccine efficacy against it, for the simple reason that it hadn’t yet been discovered. In these circumstances, longstanding legal principles require the justices to stay the mandates and send them back to the agencies for a fresh look.
It is becoming very obvious that there is a severe lack of common sense among those who are currently supporting vaccine mandates.