In November, when the Biden administration imposed a federal coronavirus-vaccine mandate on all employers with 100 or more workers, it did so through the Occupational Safety and Health Administration, a federal agency that Congress created in the early 1970s to ensure safe working conditions. Now the Supreme Court has blocked OSHA’s action, ruling that the agency lacked the authority to order large employers to require all workers to be vaccinated or frequently tested.
Critics of the decision have decried it as a deadly blow to an effective pandemic safeguard. Be that as it may, in our constitutional system, Congress is the body that should determine whether to impose a federal vaccine mandate. And generally, the United States would be better served if Congress voted on more federal pandemic policies, rather than ceding basic judgments about how society operates to the president or the federal agencies that he oversees.
COVID-19 began as an emergency, and virus variants have repeatedly presented new emergencies. It is therefore appropriate that significant decisions, like much of Operation Warp Speed, should have been made by the executive branch. But when Congress has time to weigh a decision, it ought to chart America’s course. On March 27, 2020—just two weeks after the emergent pandemic forced businesses and schools to shut down—federal lawmakers approved the $2.2 trillion Coronavirus Aid, Relief, and Economic Security Act. So Congress is capable of acting. By and large, though, it has chosen to be characteristically passive during this crisis and left major pandemic-policy matters—such as who should be allowed to enter the country and whether employers should require workers to get shots—to President Donald Trump and then President Joe Biden.
Congressional policy making has downsides. Federal bureaucrats can marshal technical expertise that legislators generally lack and enact many policies and regulations faster than the House or Senate can typically write, debate, and pass laws. Today’s Congress is often mired in grandstanding, obstructionism, and stalemate. And many members of Congress prefer to cede their power to the executive branch, because it helps them avoid controversial votes.
But as the think-tank scholar Philip Wallach wrote in “Congress Indispensable,” a 2018 essay in National Affairs, “the very features that would-be reformers find most exasperating—its messiness, balkiness, and cacophony—are those that render our representative legislature capable, in ways the other branches are not, of maintaining the bonds that hold together our sprawling republic.” The legislative branch is “a poor champion of efficient government,” Wallach added, but he argued that representative government promotes coalition building, improves trust, and makes the government genuinely accountable to the public.
In that telling, congressional policy making has no good substitute in a big, diverse country, particularly one where many are fretting about ineffective government, widening polarization, and even potential civil war. The dearth of energy and assertiveness on Capitol Hill helps explain the nation’s predicament.
For more than a year, my colleague Derek Thompson writes, Democratic leaders implored Americans to take the pandemic more seriously by radically altering our lives. Yet “the federal government still hasn’t passed pandemic preparedness legislation that would accelerate vaccine production for the next variant or the next virus, despite both seeming practically inevitable.” Thompson urges “a 100-day plan that includes creating a super-team of virus hunters to monitor viral strains around the world and an Operation Warp Speed for building vaccine manufacturing facilities around the world,” adding, “nothing is stopping us from enacting these policies except our own complacency.”
The economist Alex Tabarrok agrees. “Even now Congress has spent trillions on unemployment insurance, business protection, money for schools and stimulus but has not passed the American Pandemic Preparedness Plan, a pretty decent, mostly science-based investment plan.”
Yet it’s been months since Stat reported that “addressing the federal government’s failures during the Covid-19 pandemic has fallen off the priority list in Congress this year,” and that “if legislative progress on bolstering pandemic preparedness has been slower than expected in the Senate, it’s been virtually nonexistent in the House.” Why the complacency? Part of the problem is that Americans are accustomed to seeing pandemic response as the purview of presidents, governors, and mayors, rather than a major responsibility of legislative bodies at all levels of government. We should demand more of our legislators but don’t think to do so.
For Biden, pursuing a vaccine mandate through OSHA was the most convenient way to get such a policy enacted; the pandemic is an emergency, the agency’s power seemed broad enough, and if Democrats proposed to write the mandate into law, Republicans might not go along. But the workaround didn’t work. Pursuing a federal vaccine mandate through the bureaucracy failed at the Supreme Court. The closest thing to a congressional vote on vaccination mandates was when Senate Republicans, joined by two Democrats, voted—in a largely symbolic gesture—to roll back the OSHA rule. Voters, whatever their views on vaccine mandates, will have no one to thank or punish in the House.
Had Congress more actively weighed a mandate, members of the public could have called or written their representative, organized a rally outside their office, pressed them with any number of arguments for or against, and perhaps inspired amendments to improve a proposal. Members could have cast votes on amendments, clarifying their views, or horse-traded in ways that made more interest groups happy or fewer unhappy. And, wherever you stand, you could hold your representative accountable. (The next time your senators are up for reelection, you can hold them accountable.)
Across policy matters, federal bureaucrats are inaccessible to Americans and unaccountable to voters. Political insulation could conceivably help them decide on smarter policies than whatever would make it through Congress on certain occasions. But Wallach pointed out that politics is not merely a process by which the government solves social problems efficiently. That common but “impoverished” view presumes that government confronts clear, well-formulated problems, “but in fact political work is much harder,” he wrote, “because the basic dimensions not only of the solutions, but also of the problems themselves, are contested.”
For example, if we presume that the primary problem is that COVID-19 makes many workplaces unsafe, some OSHA bureaucrats may have more expertise than any legislator addressing it. But for many, a federal vaccine mandate implicates matters beyond workplace safety. Some believe in a right to bodily autonomy and worry about the precedent the mandate would set. Others worry that because vaccination rates among Black and Latino Americans are lower than those of white people, a vaccine mandate would disproportionately burden people of color. Still others worry that too many workers would walk off the job rather than submit to a mandate, or contend that evidence of previous infection should count the same as a vaccination, or believe the most important thing for the health of American society is to ease up on pandemic-related mandates.
Agency bureaucrats have no special expertise weighing such disparate concerns against one another. Some of the most challenging decisions during the pandemic—such as how long society should stay shut down—are fundamentally democratic questions, not technical ones. And citizens tend to become upset, alienated, and less supportive of government’s legitimacy when decisions are opaque and decision makers are unreachable, unaccountable, and apolitical—insofar as that means the political preferences of many kinds of people are ignored.
Congress is not, I admit, perfectly representative of the electorate. The House will better reflect the priorities of all Americans than the Senate, given that the latter disproportionately skews toward low-population states and produces legislative outcomes further distorted by the filibuster. Still, better to have the votes of House and Senate members on the record, as a matter of democratic accountability, than for the legislative branch to never vote on a major policy matter at all.
In Congress and the American Tradition, the political theorist James Burnham posited that “the people cannot be represented by or embodied in a single leader precisely because of the people’s diversity.” Rather, “their representation, if it is to be more than a masquerade, must have some sort of correspondence to their diversity.” Relatedly, Congress is designed not for arriving at the “right” answers, but rather answers that are sufficiently representative to be broadly accepted.
In the same spirit, Wallach rightly argued that “a representative legislature’s ability to give outlet to differences and take seriously people’s parochial concerns is crucial to its ability to generate trust in a diverse populace,” and that “cultivating a sense among citizens that they are represented is especially crucial in a low-trust political environment.” Today’s America is just such an environment.
Yet partly because of congressional dysfunction, we’ve come to rely more and more on undemocratic processes. “Congress enacts perhaps 50 significant laws each year,” the researcher Kevin R. Kosar observed back in 2015. “Agencies issue 4,000 new rules per year, and 80 to 100 have economic effects of $100 million or more … The executive branch has displaced Congress as the primary locus of lawmaking in the country.” Overreliance on the executive is a recipe for declining faith in democracy. Perhaps even that price would be worth paying, in a deadly pandemic, if the CDC, FDA, NIH, and OSHA were efficiently arriving at optimal solutions. Given that almost no one believes that to be so, the case for more assertive leadership from Congress is strong.