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The GOP’s Performative Lawmaking on Vaccine Mandates

It risks prolonging a pandemic that Americans are desperate to move beyond.
by Jim Swift
November 29, 2021
The GOP’s Performative Lawmaking on Vaccine Mandates
Workers at NASA's Jet Propulsion Laboratory (JPL) and their supporters protest November 1, 2021 outside JPL in Pasadena, California against a US government mandate requiring all federal employees to received the Covid-19 coronavirus vaccine. - Eleven US states with Republican governors sued the Biden administration on October 29, 2021 seeking to block a Covid-19 vaccine mandate for federal contractors, arguing it is unconstitutional and violates federal procurement law. (Photo by Robyn Beck / AFP / Getty)

Contrary developments over the last few days raise the big COVID question of when and how life will normalize—not return to a pre-pandemic normal, but just stabilize at a level where lockdowns and travel restrictions and masking will be more or less behind us.

First, we’ve just gone through Thanksgiving weekend and, according to the Transportation Security Agency, airline travel, as measured by the number of people passing through airport security checkpoints, was roughly double what it was last year. The numbers were near, although still a bit under, the 2019 levels. The statistics for auto traffic over the holiday were expected likewise to be much higher than last year but a fair bit lower than the year before. Which is to say that this was, for many millions of Americans, something approaching a normal Thanksgiving.

Second, though, came the weekend of media hand-wringing about the recently discovered omicron variant. This new COVID strain’s virulence and transmissibility are still not reliably known. But the warning signs are sufficient that Dr. Anthony Fauci said on TV yesterday that we need to “prepare for the worst.” The specter of new shutdowns and restrictions looms. This is on top of the already-baked-in expectation that there might be a fall/winter surge in new COVID cases over the next few weeks, as more activities move indoors.

Given this situation, with Americans eager to get back to normal but hearing warnings of potential danger, you might think there would be a big bipartisan push underway to vaccinate as many eligible people among the 30 percent of Americans who have not had even one dose of a vaccine.

Instead, we’re seeing some Republicans lining up to oppose people setting vaccination guidelines for entry to their privately owned business. Republicans used to be in favor of business owners being free to run things how they wanted—the days of “let the Christian cake baker refuse gay folks” weren’t that long ago—but apparently not so much anymore.

In fact, some Republicans are trying to make being unvaccinated a protected class—on a legal footing with race, sex, religion, and other factors. Here’s how the Idaho Statesman described what’s going on in that state:

There have been two groups in recent decades who have presented their case for restrictions on employers to preserve workers’ rights at the Idaho Legislature.

The first is Idaho’s LGBT community, which has fought for Add the Words legislation that would protect sexual orientation and gender identity as existing employment law protects race, sex, religion and national origin.

The second is opponents of the COVID-19 vaccine, who have sought legislation to either out-and-out ban all employer vaccine mandates, or make vaccination status a protected class like race, or various other measures. That effort has been rewarded by the longest legislative session in Idaho history, and well over 30 bills and numerous hearings.

House Bill 412, a bill essentially identical to Add the Words, but for those who decline vaccines rather than those who are born LGBT, passed the House 47-22 on Tuesday.


Idaho is just one of more than a dozen states in which Republican lawmakers have debated the question of vaccine mandates. As one health policy analyst told Pew last week, in the understatement of the year, “It’s important to recognize that . . . a lot of it is performative.”

The debates have often focused on the pending OSHA regulation requiring a COVID vaccine that President Biden announced back in September and how it might intersect with the Religious Freedom Restoration Act, a federal law signed by Bill Clinton that many states have also adopted.

Passed at the federal level in 1993, RFRA was a response to two Supreme Court rulings in which the court dismantled a protection known as the Sherbert Test—a four-part test to determine whether a law violated an individual’s right to free exercise of religion. RFRA reinstated the Sherbert test.

Under RFRA, the federal government must prove under strict scrutiny that its actions, if found by a court to substantially burden a person claiming a sincere religious belief, are necessary for “furtherance of a compelling government interest” and that the government pursued the least restrictive means of furthering its interest. If the government fails to prove both, the court can require that the underlying law or rule be changed or thrown out altogether.

Historically, vaccine mandates have fared well in the courts. But we don’t know where the courts will ultimately come down on Biden’s proposed mandate, for two reasons: The part of the mandate that applies to private employers is being held up in the courts thanks to lawsuits from Republican governors, and federal courts are likely to vary in their rulings about the mandate.

Decisions could be expedited and zip immediately to the U.S. Supreme Court. But more realistically, it’ll probably be close to the 2022 midterms—or beyond, well into the start of the 2024 election cycle—before we get definitive rulings. By then, the pandemic could be in the rearview mirror. Or it could still be the biggest issue in front of our windshield.

Jim Swift

Jim Swift is a senior editor at The Bulwark.