Lottery May Trigger Vaccine Mandate For Flyers; Fate of OSHA Rule Now in Hands of Conservative Republican-Dominated Court
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Q3 2021 hedge fund letters, conferences and more
Lottery May Trigger Vaccine Mandate
WASHINGTON, D.C. (November 17, 2021) – Now that a lottery has determined that the fate of President Biden’s signature public health policy – an OSHA requirement that all large firms require workers to be vaccinated or tested weekly for Covid – is in the hands of a very conservative Republican-dominated court of appeals, it is even more imperative that he promptly announce a vaccine requirement for persons wishing to fly, both internationally (where such a requirement is inevitable) and domestically, public interest law professor John Banzhaf has told the President’s key Covid advisors.
The lottery, required by federal law whenever competing cases are filed in several different courts of appeal, put the consolidated cases – now stayed indefinitely by the Fifth Circuit Court of Appeals – into the hands of the equally conservative Sixth Circuit.
But 20 of the 27 judges on this very conservative court were nominated by Republican presidents. “It’s not good news for Biden,” argues Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law, who has argued forcefully in favor of the legality of the OSHA rule.
Professor Banzhaf, whose legal actions regarding smoking saved millions of lives, and who has already made significant contributions to the war on the pandemic, suggests four reasons why this lottery is a game changer.
1. The Sixth Circuit is unlikely to overturn the stay of the requirement unanimously imposed by the equally conservative Fifth Circuit, thereby likely condemning this key initiation to an inglorious defeat for the foreseeable future.
2. Even if by chance it does overturn the stay pending a decision on the merits, it is likely to take longer to do so, thereby further delaying its implementation, and incentive for an increasing number of vaccinated Americans.
3. The oral arguments and written opinions are likely to produce comments which were even more critical of one of the White House’s signature public health policies *\[*Washington Post – A Major Blow].
4. All of this will cause tens of thousands of unnecessary deaths and hospitalizations, and further tarnish the President’s reputation and public image for dealing with the now-again-growing number of Covid cases.
Flyers May Have To Get At Least One Shot To Travel
Banzhaf previously told many of Biden’s key Covid advisors that, since the stay, at least for now and perhaps indefinitely, halts President Biden’s most potent mechanism for persuading people to become vaccinated, this would be an ideal time for him to announce what is probably inevitable anyway, and which some of his Covid advisors have already endorsed – requiring passengers desiring to fly, internationally and also probably domestically, to have at least one shot.
It would have the same effect as his original directive of providing a strong incentive for holdouts to finally get vaccinated, would meet much less public resistance, and be less likely to be rejected or even delayed by the courts.
This one simple step, which could be adopted quickly, and would be less subject to legal challenges, would likely persuade millions to give up their objection to a Covid vaccination, just as smoking bans on airplanes persuaded millions of diehard smokers to give up their objection to quitting – most despite an overpowering chemical addiction to nicotine – so they could continue to travel by air.
The announcement that the U.S. recently eliminated travel bans on visitors from foreign countries, but will still require these flyers to be vaccinated, suggests that vaccination may also soon be required of U.S. citizens who fly to or from the U.S., and possibly even on domestic flights.
This is very likely to occur because proof of vaccination will soon be a de facto requirement for international flights as other countries respond to Biden’s new order, and Canada has already adopted such a requirement.
Indeed, since passengers must already be checked for valid picture IDs (which soon must meet the much tougher standards for REAL-ID), and international travelers much also be checked for a recent negative Covid test, requiring that adult airline passengers also show proof of at least one vaccination in order to fly would certainly not be unreasonable nor unworkable.
As one flight expert has noted, “If it were to become law it really would just be kind of adding restrictions in the U.S. that already exist elsewhere in the world and that have been working pretty well to contain COVID . . .I really don’t see any way where it would be a big problem although passengers may be a little bit upset based on what we’ve seen in the past in the U.S.”
Emergency Travels
However, US Surgeon General Dr. Vivek Murthy did not endorse the proposal because of concerns for “people, for example, if they have to travel in the case of emergency to see a relative who got sick.”
But Dr. Murthy may have failed to appreciate that the same problem would occur if, in an “emergency,” a flyer lost or misplaced his driver’s license (including, soon, one with REAL-ID), and thus might not be able to board a flight to a foreign or even domestic destination.
Moreover, unlike with a driver’s license, an unvaccinated person suddenly needing to fly in an emergency can probably receive at least one shot with a wait of no more than an hour or two.
If the emergency involved travel abroad (e.g., a sick relative in Europe), many Americans may not have an up-to-date passport, and in any event would have to very quickly arrange a COVID test in order to fly; moreover, a vaccine requirement to fly might even provide for exceptions for true emergency situations, as well as for children under a certain age.
If vaccinations were required to fly, it might be possible to no longer require masks during flights, even when not eating or drinking; a burden now imposed on the majority of passengers who are vaccinated by the small minority of flyers who are not, and a change which would be welcomed by the majority of flyers (and their families) who would then add even more public support to such a rule.
And it would certainly provide a very powerful additional incentive for more Americans to get vaccinated, especially now that Biden’s workplace mandate is tied up indefinitely in the courts.
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