CAMBRIDGE – Earlier this month, the US Supreme Court blocked President Joe Biden’s attempt to mandate that businesses with more than 100 employees require them to be vaccinated against COVID-19 or else wear face masks and be tested regularly. Was the Biden administration guilty of overreaching?

In some countries, including Austria, Ecuador, and Indonesia, governments have imposed COVID-19 vaccine mandates on the entire population, or at least on all workers. Germany is currently mulling whether to follow suit. And many countries, including Italy, have imposed a vaccination requirement on subsets of the population, such as health workers or those over 50.

But other governments, including in Denmark and the United Kingdom, have made vaccination a matter of individual choice. In some places, public opposition to compulsory COVID-19 jabs is as strong as the American anti-vax movement.

The COVID-19 vaccines work. Unvaccinated people are approximately 15 times more likely to die from the disease than the vaccinated. Nonetheless, even among the majority of Americans who accept that the vaccines are safe and effective, some argue that individuals should be able to choose whether to get the jab. They regard government mandates in this domain as a bridge too far.

A presumption that laissez-faire should be the default option in public policy makes sense to many economists: before proposing a government intervention, a particular market failure should be identified.

Usually, this is not difficult to do. Environmental pollution is a classic example, because other people not party to the harmful activity bear the cost of dirty air or water. As a result, the market will produce too much dirty air and water. Other categories of market failure include public goods, monopoly power, and an individual’s inability to make an informed decision (such as in the case of children).

It would be very difficult to get everyone to agree on where to draw the line between cases where the benefits of government intervention outweigh the costs, and instances where they do not. But it should be easier to agree on an ordering of various practical applications according to the strength of the argument for intervention. Such a classification, in turn, might encourage clearer thinking about the merits of COVID-19 vaccine mandates.

Consider the following 15 policy issues, arrayed in a proposed sequence from the strongest, most widely accepted case for government intervention, to the weakest.

First, law enforcement by the police and criminal justice system is a bedrock function of government. Even die-hard libertarians agree that this is appropriate. Next, as also should be obvious, individuals may not possess tactical nuclear weapons.

Third, we install traffic lights at busy intersections, and ask police to enforce compliance. The case for this is even stronger than the case for requiring seatbelts, because a larger share of the mortal danger from running a red light falls on others.

I propose that a COVID-19 vaccine mandate for all workers (allowing for medical exemptions) should fall approximately at this point in the sequence, at policy number four.

Fifth, all 50 US states require that children be vaccinated against several communicable diseases: diphtheria, whooping cough, polio, measles, rubella, and chicken pox. The vaccines have virtually eliminated these six diseases, which used to kill millions, from the United States. Someone who approves of these requirements should also support a COVID-19 vaccine mandate.

Sixth, we regulate air pollution, as noted above, because it is an externality that affects others’ health and well-being.

Seventh, all 50 states also require vaccination for tetanus. Because tetanus is not a communicable disease, a purist libertarian might argue that individuals should be able to decide for themselves. But when it comes to children, there is a stronger argument for government intervention.

Eighth, under longstanding legislation, the US Occupational Safety and Health Administration – the agency that was to promulgate Biden’s vaccine standard – also regulates many other workplace hazards, including asbestos, coal dust, and other air pollutants. Some libertarians might argue that people can choose not to work for employers whose work environments are known to be unhealthy. But, as with COVID-19, workers lack full information, and the government is better able to evaluate the science.

Ninth, the government strictly regulates alcoholic beverages, including through high taxation, penalties for drunk driving, and prohibition of sale to minors. Similar restrictions apply to tobacco products, policy number ten in the list, although cigarettes – and even more so chewing tobacco – impose lower costs on bystanders than drunk driving. In both cases, society pays much of the cost when the consumer falls ill. (Cases seven and eight, as well.)

After this, the case for government intervention becomes weaker. Respect for individual freedom suggests that banning alcohol (or cigarettes) altogether would be going too far. It would also be unenforceable, as the US learned during the Prohibition era (1920 to 1933).

Likewise, while a paternalist would point to gambling’s irrationality and addictiveness, a ban is unenforceable. Also, unlike with alcohol, virtually the entire burden of gambling falls on gamblers themselves.

Government can exercise eminent domain and seize private property for public use. This is a huge encroachment on individual property rights, and yet the practice is common, even in the US. Furthermore, many conservatives support eminent domain when it comes to building an oil pipeline.

Many addictive drugs, like heroin, are illegal. Most people support this, though others argue that its use should be a matter of individual choice.

Let’s conclude with the most illogical of pandemic-related government policies. Florida Governor Ron DeSantis last year made it illegal for cruise lines and other private businesses operating in the state to require that their customers be vaccinated. But shouldn’t someone who defends property rights allow a private cruise line to judge for itself whether its potential customers want their fellow passengers to be vaccinated? The policy views of DeSantis and others like him evidently are not based on respect for individual rights, as they claim, but on something else.

Many may judge that, in the case of policies five through ten, the benefits of government intervention outweigh the costs. If so, one should logically conclude that the same is true of COVID-19 vaccine mandates.

Jeffrey Frankel is Professor of Capital Formation and Growth at Harvard University. 

© Project Syndicate 2022

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