Amateur epidemiologists took center stage in the District of Columbia during the latter half of December, making seemingly contradictory decisions regarding the threat of COVID-19. On the one hand, GOP members of Congress engineered the revocation of a Department of Defense requirement for service members to be vaccinated against the virus, apparently based on the faulty premise that the threat no longer existed. On the other hand, the Republican-appointed majority of the U.S. Supreme Court allowed a restrictive border policy to remain in effect, as if it was essential to protect public health. Both actions were motivated more by politics than by scientifically grounded evidence.
Secretary of Defense Lloyd Austin issued the vaccination mandate in August 2021 as a force protection measure. There were over 1 million new coronavirus infections in the U.S. that week. The vaccines had proven highly effective as a preventive measure, but the military vaccination rate needed a boost. The mandate was business as usual for the military because vaccinations have routinely been required to prevent the spread of disease among the troops. Before I arrived in Vietnam in 1968, I’d been shot with over a dozen vaccines, including typhus, yellow fever, plague, cholera and tetanus. Refusal was not an option because it was a court martial offense to violate a vaccination order.
Unfortunately, COVID vaccination turned into a political issue, with one poll taken shortly after the mandate disclosing that 23 percent of Republicans would “definitely not” get vaccinated. The issue percolated along until it became clear the GOP would control the House this year. The Democrats were rushing to approve a military spending bill before year end, giving Republican senators the leverage to legislate an end to the mandate in the bill.
The mandate had largely succeeded, with over 98 percent of active-duty troops and 90 percent of the Guard and Reserve having been vaccinated. Secretary Austin asserted that lifting the mandate was not in the best interests of the military, but that made no difference to the GOP. The amateur epidemiologists insisted on having it their way.
Republicans demanded that about 8,400 service personnel who had been removed from the service for defying the mandate should be reinstated, but Democrats held firm against reinstatement. Quite frankly, the removal of these people from the ranks is a blessing. If a soldier will disobey a lawful order to get a vaccine that has proven to be safe and effective, what other lawful order might the person disobey? Good riddance to the lot of them.
The other political decision made by novice epidemiologists related to migrants trying to enter the U.S. at our southern border. In March 2020, then-President Trump invoked a health law, Title 42, that prohibits people from coming into the U.S. if they might spread a “communicable disease.” The law allows for their swift expulsion.
Last April, the Centers for Disease Control and Prevention determined that changed circumstances with respect to COVID-19 rendered the prohibition invalid. Several lawsuits were brought to either keep or eliminate the prohibition.
A federal district judge in Washington ruled last November that the invocation of Title 42 was flawed in a number of respects and, in any event, not justified by the present state of the pandemic. He blocked enforcement of the prohibition against migrants. His decision was affirmed by the Court of Appeals for the District of Columbia.
But the U.S. Supreme Court issued a 5-4 order on Dec. 27 that stayed the district court order and granted a February hearing to several red states that wanted to intervene. The decision implies that a pandemic threat still exists at the border, but there was no evidence in the court record to support that premise. The only conceivable purpose of the Supreme Court’s order is to delay implementation of the district court’s order by about half a year, clearly a political bone to the red states.
Justice Gorsuch, usually a solid member of the court’s conservative supermajority, filed a pithy, well-founded dissent. He argued that the delay would change nothing of substance because “the emergency on which [the Title 42] orders were premised has long since lapsed.”
He continued: “But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
The case presented an immigration issue, and the Court should have let the lower court decision stand. After all, Trump’s “Muslim ban” was upheld by the GOP majority in June 2018, based on its determination that a president has broad authority in immigration matters.
Congress and the Supreme Court would be well advised to operate within their respective spheres of competence. Court members have no business making decisions on complicated public health issues when there is no scientific evidence in the record to support their action. The idea of flying by the seat of their pants on the question of whether pandemic conditions exist is extremely troubling. Just as troubling is the matter of Congress intervening to micromanage and second-guess medical policy of the Defense Department that is based on scientific evidence. Neither body is endowed with innate competence in the field of epidemiology and should defer to those with actual expertise.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.