Mandates vs. Bans

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On October 11, 2021, Texas Governor Greg Abbott, reacting to the widespread vaccine mandates being issued by federal, state, and municipal governments, and private employers, issued an executive order banning all types of vaccine mandates in the state.

Six days later, in an artful piece of sophistry, “Forcing Government’s Will on Business: What’s conservative about Abbott’s ban on vaccine mandates? It’s still a mandate,” the Editorial Board of the Houston Chronicle appeared to frame an argument that there is hypocrisy in Governor Abbott’s action.

Unfortunately, the Chronicle failed to pursue the argument as stated, detouring instead into the number of covid deaths, ostensible conservative philosophy, Abbott’s reelection chances, and every irrelevant rabbithole in sight. So let’s set the record straight.

The headline statement is semantically and legally wrong. A ban is a prohibition. A mandate is a coercion. Prohibition and coercion are not the same thing. The first is a requirement not to do. The second is a requirement to do. Usually, both are anti-liberty. Arguably a mandate is categorically the greater imposition on liberty because it establishes an affirmative requirement to act, whereas a ban “only” requires abstaining from an activity. The latter can be less offensive to liberty, particularly when it doesn’t destroy a relied-upon livelihood or disrupt an ongoing activity.

Unfortunately, the Chronicle failed to pursue the argument as stated, detouring instead into every irrelevant rabbithole in sight.

 

These concepts are not partisan. There is a subset of the political Right that is the coercive and prohibitory Right, and that is now considered fringe among Republicans. There is also its mirror image: a subset of the political Left that is the coercive and prohibitory Left, and that has lately seized hegemony within the Democratic Party. Each extreme tries to enforce upon the whole population conformity to its notions of what is moral and proper, often by coercing what the other side would seek to prohibit, and by prohibiting what the other side would seek to coerce. There used to be a great deal of Venn-diagram overlap in what both sides would agree should be allowed, forbidden, or required. In these times that overlap is greatly diminished.

Libertarians generally oppose both coercion and prohibition, and favor allowing individual choice. The two dominant parties each have a libertarian-ish wing. Among Democrats permissiveness is mainly limited to matters of sex and drugs, if only they would stop there, rather than trying to force everyone to endure skirted, intact XYs in little girls’ restrooms, or be vaccinated against their will. Republicans tend to lean permissive on economics but prohibitory on border violations and abortion.

To mandate a ban is to fire both barrels at liberty. It is a doubling down. But to ban a mandate is different: it cancels a coercion, thus rescuing and restoring liberty. That is what Governor Abbott’s ban of vaccine mandates does insofar as it puts the brakes on Texas counties and cities forcing people within their jurisdictions to be vaccinated against their individual will.

The issue in Texas is more properly framed as two separate issues: (a) the relative roles of state and local governments, and (b) the power of a state government over individuals and business entities, including those who do business across state and international lines. In the latter case, (b), Abbot’s “mandate ban” ostensibly seeks extraterritorial power to the extent that it would be imposed on multistate or multinational entities across the board, without more relation to Texas than the fact that they operate or employ certain people there. The state’s right in the former case, (a), is clear: a state’s expressed authority prevails over that of its political subdivisions, and when that expression is comprehensive, it preempts the field altogether. Preemption is a legitimate doctrine that promotes uniformity and prevents local overreach. State uniformity preserves liberties to the extent some local jurisdictions are more inclined to impair them.

To mandate a ban is to fire both barrels at liberty. It is a doubling down.

 

There is another distinct axis to this issue, namely the employer-employee relationship. From the standpoint of liberty, the employee does not own the job, the employer does. By the same token, the employer does not own the employee or her labor — the employee does. The employer is not required to provide the job, and the employee is not required to accept it. People of most political stripes accept reasonable regulations for the protection of workers. The principle of individual liberty limits the scope of what an employer may require of an employee. The integrity of the human body is the prerogative of the free person who inhabits it.

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