The Choice Between Persuading and Coercing Americans to Get Vaccinated Against COVID-19

AuthorPaul J. Larkin
PositionJohn, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation; M.P.P. George Washington University, 2010; J.D. Stanford Law School, 1980; B.A. Washington & Lee University, 1977
The Choice Between Persuading and Coercing
Americans to Get Vaccinated Against COVID-19
Throughout history, organized societies have demanded that inhabitants make
sacrificessuch as serving in the military or receiving a vaccine that protects
against a contagious and potentially fatal diseasein a time of national emer-
gency to help ensure the nation’s survival. President Joe Biden believes that
COVID-19 creates such an emergency. After initially trying to persuade
Americans to get vaccinated, he recently decided to order that outcome by direct-
ing the Occupational Safety and Health Administration (OSHA) to mandate that
employees be vaccinated. That decision was mistaken and ironic. Mistaken,
because OSHA lacks such authority. Ironic, because he has endorsed a moral
and constitutional right to make such decisions free from government directive.
He could and should have sought to convince Congress to enact a vaccination
mandate and persuade the nation that the problem of SARS-CoV-2 was not a
matter fit for political debate and that, just as politics once stopped at the water’s
edge, politics should play no part in the nation’s response to the pandemic on
this side of those shores. To prove his commitment to save lives, he could have
demonstrated that he was willing to risk his political future and the judgment of
history by embracing compromise and working with people outside his party to
negotiate a nationwide vaccination mandate, even if he had to trade away poli-
cies that his party wanted to see enacted into law. He chose not to make the sac-
rifices necessary to take this issue out of politics. As a result, it is poetic justice to
see so many people object to entreaties to make a personal sacrifice for the pub-
lic benefit offered by a politician who refused to make his own.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
I. THE CHOICE: TO PERSUADE OR COERCE .. . . . . . . . . . . . . . . . . . . . 353
II. THE OUTCOME: SUCCESS OR FAILURE? .. . . . . . . . . . . . . . . . . . . . . 357
* John, Barbara & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation; M.P.P.
George Washington University, 2010; J.D. Stanford Law School, 1980; B.A. Washington & Lee
University, 1977. The views expressed in this Article are my own and should not be construed as
representing any ofcial position of The Heritage Foundation. I am grateful to Doug Badger, GianCarlo
Canaparo, John G. Malcolm, and Sarah Parshall Perry for helpful comments on an earlier iteration of this
Article. Any errors are mine. © 2022, Paul J. Larkin.
III. WHY ORDER PEOPLE TO BE VACCINATED? . . . . . . . . . . . . . . . . . . . 360
CONCLUSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
Be not deceived; God is not mocked:
for whatsoever a man soweth,
that shall he also reap.
Galatians 6:7 (King James)
The legal principle of stare decisisLatin for to stand by things decided”—is
now a topic of public discussion due to the U.S. Supreme Court’s possible reconsid-
eration of its nearly fifty-year-old decision in Roe v. Wade
creating a constitutional
right to abortion.
But the proposition that governmental decisions can create settled
expectations over time is not unique to the law. Policies, even attitudes, once adopted
can become indelible background features of ongoing political debate. Even presi-
dents must accept that reality. Upon assuming that office, they face the fact that, over
time, people and institutionsincluding (perhaps especially) their predecessors
have conditioned the nation to accept as permanent certain beliefs, attitudes, or opin-
ions that might incline the public against policies that a new chief executive would
like to see implementedvoluntarily, if possible, or by force of law, if necessary.
Why is that relevant? For more than 60 years, the intelligentsia have not only
uniformly extolled the virtues of self-advancement, self-fulfillment, and self-grat-
ification as the ne plus ultra of life’s meaning, but also have repeatedly dispar-
aged self-sacrifice as something that only chumps could find noble. That thesis
has affected virtually every aspect of contemporary public policy; it is ubiquitous
and, from a social perspective, corrosive. It is especially pernicious when applied
to certain issues, such as whether military service is virtuous and whether the gov-
ernment can ask individuals to suffer a risk of serious disability, perhaps even
death, in service of promoting the welfare of all.
It was not always that way. More than a century ago, the Supreme Court of the
United States twice made it quite clear that any society may ask its citizens to
make sacrifices to ensure that the nation survives. Whether the nation needs to
raise an army or navy to protect against foreign adversaries or to vaccinate the
public against dangerous domestic pathogens, the authority to demand individual
sacrifice at times is indispensable for the overall public welfare.
Today, however,
1. 410 U.S. 113 (1973).
2. See Dobbs v. Jackson Women’s Health Org., 141 S. Ct. 2619 (2021) (granting certiorari).
3. See Arver v. United States, 245 U.S. 366, 378 (1918) (It may not be doubted that the very
conception of a just government and its duty to the citizen includes the reciprocal obligation of the
citizen to render military service in case of need and the right to compel it.); id. at 390 (Finally, as we
are unable to conceive upon what theory the exaction by government from the citizen of the

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