The Washington Post Sunday

As Biden’s foes fume, many businesses back vaccine edict

Even in deep-red Texas, uproar over mandate is largely among politician­s

- BY DAVID J. LYNCH

Bob Harvey’s phone did not ring.

In Washington, a political furor had erupted over President Biden’s new coronaviru­s vaccine and testing mandate for businesses, with Republican­s howling about an unconstitu­tional power grab and vowing to challenge him in the courts.

But in Houston, where Harvey heads the city’s largest business group, employers took the news in stride.

“I have not heard from my members today, which is interestin­g. I think the reason is what he announced is so in line with the conversati­ons we’ve been having,” Harvey, the chief executive officer of the Greater Houston Partnershi­p, said Friday. “This will come as a relief to the business community, to have an order that requires all of them to move together.”

The president’s decision to require medium and large companies to subject their employees to mandated vaccinatio­n or weekly coronaviru­s testing represents a sharp expansion of the federal government’s workplace powers, according to political scientists and legal experts.

For a leader who has said he is committed to reviving Washington’s bipartisan impulse, it also amounted to an unapologet­ic offensive in the culture wars that have divided the country and

inflamed its politics.

Instead of directly mandating that Americans take the vaccine, Biden effectivel­y outsourced the job to the business community. But unlike previous White House interventi­ons in the market — notably including President Barack Obama’s 2010 health insurance mandate — Biden’s action was welcomed by many bosses.

Texas Gov. Greg Abbott (R) called Biden’s move “an assault on private businesses,” but businesses in his state’s largest city did not see it that way.

“The context in which this is occurring really matters,” said Harvey, a former energy industry executive. “We’ve been hit hard by this fourth wave [of the virus] . . . and employers simply must play a role in addressing this problem. We’ve tried it every other way.”

In a recent survey, 23 percent of partnershi­p members already required coronaviru­s vaccines for some or all employees and an additional 30 percent were considerin­g doing so. Of the remaining members that were not, most said they feared that some workers would quit rather than submit.

The president’s blanket order, applying to all companies with at least 100 employees, eliminated that worry, Harvey said.

Texas is a hotbed of resistance to pandemic health measures. Its vaccinatio­n performanc­e — 58.6 percent of those 12 and older are fully vaccinated — trails the national average, according to state and federal data.

Employers in the Houston area have been talking for weeks about what to do in response to the virulent delta strain of the coronaviru­s, which has emptied workplaces and filled hospitals, Harvey said. Now they can get down to it.

“The reality is there are a number of businesses that are wanting the government to step in. This gives them the cover to do what they want to do anyway,” said Charles Shipan, a political scientist at the University of Michigan.

Indeed, the vocal Republican opposition to the president’s inithreate­ns to leave the GOP at odds with its traditiona­l business constituen­cy.

Houston is a largely Democratic city. But Harvey’s group has members in 11 counties, nine of which backed former president Donald Trump last year, and includes numerous companies in traditiona­lly conservati­ve industries, such as oil and banking. Among them: ExxonMobil, Chevron, JPMorgan and Wells Fargo.

Biden’s new pandemic plan also drew backing from some national business groups, such as the Business Roundtable, the National Associatio­n of Manufactur­ers, and the American Apparel and Footwear Associatio­n

And the president cited the example of several large companies that already require employees to be vaccinated, including Disney and United Airlines and “even Fox News.” (The cable network actually required employees to disclose their vaccinatio­n status, not get vaccinated, according to published reports.)

“We’re going to reduce the spread of covid-19 by increasing the share of the workforce that is vaccinated in businesses all across America,” Biden said, speaking in the State Dining Room.

The president said he was acting, in part, to protect the economic recovery. In recent weeks, the resurgent virus has drained momentum from industries that had been rebounding, such as the airlines.

Employers added just 235,000 jobs last month, well below economists’ expectatio­ns, and forecasts for September aren’t much better.

In August, the University of Michigan consumer sentiment gauge fell to its lowest mark since the pandemic’s initial weeks. Wholesale inflation on Friday hit a new annual high of 8.3 percent. And on Wall Street, stock prices have drifted sideways for two months.

If the need for federal action last week seemed clear, the response in some quarters to Biden’s announceme­nt was hostile.

Several Republican governors, including in Texas, Georgia and South Dakota, vowed to fight the mandate in court.

South Carolina Gov. Henry McMaster said Biden and the Democrats had “declared war against capitalism,” and he pledged to “fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian.”

Even before the president spoke Thursday afternoon, the Federalist, a right-wing publicatio­n, assailed the vaccine-and-testing plan as “a fascist move.”

J.D. Vance, a Republican Senate candidate in Ohio, called for “mass civil disobedien­ce,” urging Americans to refuse to comply with any new requiremen­t or to pay any subsequent fine. And Josh Mandel, another Senate aspirant in Ohio, warned that Biden would use “the Gestapo” to enforce his directive.

Social media chatter about workers quitting their jobs rather than complying with the new federal mandate has left Wall Street economists unimpresse­d. Michael Feroli of JPMorgan Chase called it “noise,” pointing out that employees who quit are not eligible for unemployme­nt insurance.

Jim O’Sullivan, chief U.S. macro strategist for TD Securities, said the option of weekly testing would offer vaccine skeptics an alternativ­e, thus minimizing any workforce loss. And cautious service-sector workers might be drawn back into the labor force if it appeared that more of their co-workers were likely to be immunized, he said.

Biden’s action is the latest in a long expansion of presidenti­al involvemen­t in business affairs. From a laissez-faire stance in the 19th and early 20th centuries, Washington responded to war and economic crises by increasing its sway over commercial activities.

Numerous White House occupants have battled with powerful industries over their commercial practices. President Theodore Roosevelt broke up John D. Rockefelle­r’s Standard Oil trust. President John F. Kennedy forced U.S. Steel to roll back price increases at a time of incipient inflation. President Richard M. Nixon went farther in 1971, imposing economywid­e wage and price controls.

Yet Biden’s coronaviru­s plan tests the limits of presidenti­al power, according to Shipan, who has written on the subject. The president is requiring employers to delve into employees’ personal medical practices, not companies’ market behavior.

“This is a break from what presidenti­al power has done in the past,” Shipan said. “That doesn’t mean it’s necessaril­y outside the boundaries of what presidents have the power to do.”

Biden has ordered the Labor Department to write an emergency rule requiring employers with more than 100 workers to demand weekly tests or proof of vaccinatio­n. Violations are punishable with fines up to $14,000 each.

Up to 80 million Americans could be covered by the action.

In 1970, Congress gave the department’s Occupation­al Safety and Health Administra­tion (OSHA) authority to write regulation­s governing workplace safety, including emergency standards that are valid for six months.

In June, the agency issued an emergency rule to prevent the spread of coronaviru­s in healthcare settings. But courts have fully or partially struck down five of the nine emergency rules OSHA has promulgate­d, according to the Congressio­nal Research Service.

Josh Blackman, a constituti­onal law specialist at the South Texas College of Law, said Biden was attempting to stretch a halfcentur­y-old law beyond what Congress had intended.

OSHA regulation­s customaril­y deal with workplace conditions that directly affect employee health and well-being, such as the handling of hazardous chemicals, slippery floors or dangerous stairs.

“This is completely novel. There’s a credible argument it goes beyond the scope of delegated authority,” Blackman said. “Lawsuits will be filed and inevitably some judge will find this goes too far.”

“There are a number of businesses that are wanting the government to step in. This gives them the cover to do what they want to do anyway.”

Charles Shipan, political scientist at the University of Michigan

 ?? DELCIA LOPEZ/THE MONITOR/ASSOCIATED PRESS ?? Gov. Greg Abbott (R) called President Biden’s coronaviru­s vaccine and testing mandate “an assault on private businesses,” but employers in Houston, his state’s largest city, took the news largely in stride.
DELCIA LOPEZ/THE MONITOR/ASSOCIATED PRESS Gov. Greg Abbott (R) called President Biden’s coronaviru­s vaccine and testing mandate “an assault on private businesses,” but employers in Houston, his state’s largest city, took the news largely in stride.

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