Last Wednesday, the Supreme Court struck down one of the Biden Administration’s most intrusive measures: the COVID vaccine mandate for large employers enacted by OSHA. This ruling was viewed on the Right as a victory for freedom and bodily autonomy.
Unfortunately, it won’t matter much.
Government and Corporations Work Together Against American Workers
Laws and regulations do not merely command corporations to act; they also give them cover to do what they want to do anyway. Publicly, they may say, “aw shucks, the government made me do it,” even as they privately and quietly celebrate. Regulations remove the need for public relations messaging and provide obstacles to smaller, less lawyered-up competitors. In the end, regulations often smooth the way for large corporations to do what they already wanted to do, whether it be hiring cheap foreign labor, providing maternity leave, or forcing their employees to have a vaccine. Large companies, let’s not forget, play a very large part in drafting legislation through their armies of lobbyists–a practice known as “regulatory capture.”
Laws and regulations can also change corporate habits; the new compliance regime creates new habits and new stakeholders, including the ever-growing legions of “human resource professionals.” Once the change happens, the new system has a momentum of its own, even if new law, which functioned as a catalyst, is short-lived because of a court decision or a change in the political winds.
By way of example, no one thinks that today the repeal of nondiscrimination laws would lead to widespread discrimination, other than, of course, against white men in the form of affirmative action. In this case, nondiscrimination laws merely codify what nearly every company would do even if the law were taken away.
Regulations Under the “Nudge” Framework
This notion of laws and regulations subtly influencing behavior in ways beyond mere punishment is the chief contribution of law professor Cass Sunstein. He is an intelligent and strange man, who taught at my law school and later became the regulatory guru of the Obama Administration. He is an expert on administrative law and a big believer in the administrative state. He is part of the relatively small crew of public intellectuals seeding the regulatory landscape with ideas and direction.
In his book Nudge, he sets forth the idea that our behavior is often bound by habits and traditions, which are themselves infected with cognitive and other biases. Intelligent regulators can see more clearly the best path forward with their rational methods and access to big data. But ordering people to do what is in their best interest often meets resistance.
So, instead of merely commanding better behavior, Sunstein argues that laws and regulation do not necessarily have to command, but rather can nudge better behavior by tinkering with incentives and default rules. For example, instead of requiring employees voluntarily to save into their retirement accounts, a nudge-style regulation would make those contributions the default and require some affirmative effort to undo.
Compared to the heavy-handed tactics of the COVID fanatics, the nudge regime is certainly preferable. But implicit in his proposals is the assumption that much of our lives need regulation, that regulators know best, and that there is one best way forward for everyone. In other words, the whole premise of the technocratic regulatory state is inimical to the American ideas of individualism and freedom.
Whether by design or not, the brief life of federal COVID mandates will succeed in having “nudged” most of corporate America and many of its employees in the direction of COVID vaccines, just as doubts about their efficacy and safety are becoming more widespread. The Supreme Court ruling on OSHA’s mandate does not mean all or most companies will change course, even though these company rules were enacted in many cases to comply with the regulation. Management and employees are now used to the new status quo, with many employees having already complied under duress. Corporate practices are also now intertwined with a politicized view of COVID, where deviation from maximum intervention is déclassé because it is deemed “Anti-Science.”
Just like COVID itself upset many employees’ routines—by, for example, getting many white collar workers used to working from home, while encouraging blue collar workers to demand higher wages and better treatment—companies also got used to being more involved in their employees’ private lives and healthcare decisions. We all learned that both governments and employers can justify the most intrusive folly under the rubric of fighting COVID.
A Right-Wing, Pro-Worker Regulatory Agenda
Just as there are no laws protecting political speech from monopoly private companies like Google, Facebook, and Twitter, there are no specific laws (outside of a few states) protecting the unvaccinated from the specter of status-based unemployment. With Biden’s popularity at an all-time low and the prospect of a massive Republican takeover of Congress this November, a big part of their agenda should be to protect individuals from harassment by large, leftist institutions other than the government. Bans on COVID vaccine mandates from companies and universities, protections for political speech, and changing the default rules on data privacy should all be on the table.
Before the True Conservatives™ cry foul, I would ask, “Do you oppose laws forbidding discrimination for reasons of race and religious beliefs too?” Other than the most hard-core libertarians, there are few who would go that far. Pro-business conservatives know that there are many rules and regulations governing the marketplace and that an overwhelming majority of Americans support minimum wage protections and antidiscrimination laws. The real question is whether the rules are fair and whether they reflect the public will.
One should always be studying successful tactics. Two can play at the “nudge” game, and in this case the proposed rules aimed at Woke Capital would empower individuals rather than the large institutions. In other words, the Right must not merely remove the barriers to human flourishing that already exist, but must also use the power of the state to reverse the damage wrought by an anti-American, anti-freedom hydra of government regulators, academic institutions, and unpatriotic global corporations.