There has been quite a bit of discussion lately concerning President Biden's recent decision to crack down on those Americans who refuse to obey. Last Thursday, the president gave a speech to make an announcement to start a process to draft a rule. And there is more coming.
At the president's direction, the Occupational Safety and Health Administration (OSHA) has moved swiftly to announce a plan to schedule a meeting to appoint a committee to brainstorm ideas for what such a rule might contain. A rough draft will be assembled, after which an ambitious program of consultations with lawyers, meetings with the Small Business Administration, and a review by the Office of Management and Budget will be scheduled. The new rule will then be checked by staff to make sure that nothing in it conflicts with any of the hundreds of other rules that are already out there. The public will get its first look at the new rule when it is published in the Federal Register as a Notice of Proposed Rulemaking. This is followed by a Public Comment Period, usually 30 or 60 days, during which interested parties are invited to submit ideas for correcting or improving the rule. Since this is a new area of regulation for OSHA, it is likely that feedback from employers and others will contain substantive changes that do deserve consideration, leading to a second revision followed by publication and a second Public Comment Period. With luck, the agency should be able to publish the Final Rule in late 2022, with an effective date shortly after the new Congress takes office in January and withdraws funding for the entire effort.
This is a laborious and time-consuming process, so to give the president's direction its proper due, the agency will launch a parallel effort to issue a Temporary Emergency regulation, which could conceivably be ready to go as early as March or April of next year. Since industry lobbyists will have already seen and been involved with the effort, the first lawsuit could be filed the same day, or perhaps the day after. It is unfortunately not possible to forecast an end to the Period of Lawsuits.
In the meantime, there will be endless debate over whether any of this is legal, or Constitutional. The public is divided on the matter. Since I am not a lawyer, I won't venture a guess. What I want to talk about is whether this is even a good idea.
People who work in and around government, and people who are young and stupid, frequently fail to notice that most of what goes on in this world happens without the benefit of mandates. Tomatoes, for example. I can't think of the last time I had trouble finding a tomato when I wanted one, in spite of the fact that — at least so far as I know — there is no Tomato Czar sitting in the front of the boat beating a drum, telling everyone when to row. Like most other things, tomatoes just sort of happen. It is largely the same with AA batteries, measuring cups, and dog food. It all just happens, by itself. There are in fact armies of people who work in these industries, and they are very well organized. But what there is not, is people with bullhorns bossing everybody around. That is not how the world works. And we should all be alarmed that the President of the United States does not know this. Faced with a desire to make something happen, the first thing that pops into his head, and the heads of all the rest of the government lifers around him, is mandates. Oh no.
If you are old enough to have already had your first management job, you may have learned The Hard Way what happens to somebody who thinks that “management” means “bossing people around.” What you get back is resentment, sabotage, slow-walking, and the dreaded Malicious Obedience, in which they did exactly what you said, damn them.
This is where Biden is headed with his mandates, and to the extent he can actually put them into effect before the GOP can rein him in, he will send a whole lot of things sideways. This is already happening in New York, where — on his way out the door — former Luv Gov Andrew Cuomo ordered that every medical facility in the state issue a mandate by September 27 that employees be vaccinated. Perhaps you have read about the small hospital in upstate New York that issued its mandate, only to have 30 of its employees promptly quit. The hospital has had to shutter its maternity ward until it can find replacement staff.
The blue media tells this story as if it is the unfortunate tale of one small hospital in one small town, but since this is a state mandate, something just like it will happen in virtually every medical facility in New York. Little Miss Bossypants is cute when she's five years old. If you try that in an adult setting, 30 hard-to-find medical professionals quit, and now the nearest maternity ward is thirty miles away. Or maybe it's not: we haven't heard yet how many people quit that place, or what department they had to close. What we do know is that this has to be happening up and down the state, and it won't be long before we're reading about New York's very serious shortage of RNs, NPs, and PAs. Perhaps New York's will re-locate to Florida or Texas, where mandates are less popular.
Roughly one-third of the jobs in the United States are in firms that employ fewer than 100 people. This represents a huge “sink” for people who decide to bail if and when Biden's mandate goes into effect. Nobody knows how many will, but it's clear that they aren't going to starve to death if they do.
The Blue Media will tell you that employers are eager to issue these mandates. And that might be true. But I guarantee that they are not eager to have sizable numbers of people walk out the door at the same time. As soon as everybody figures out that issuing a vaccine mandate means months of short-staffing, interviewing, hiring mistakes, and all the rest of it, the mandates will lose their luster. The worst case is the one Biden is trying to create, where everybody issues a mandate, everybody has some percentage quit, and they're all out there at the same time fighting over the same candidates as they try to recover.
And all this because no one in government can think outside the mandate. They never ask the tomato guys how to get a million people to dance to the same tune without beating them with sticks.