In today’s The Tuesday, Kevin suggests that:
we should keep up the pressure on vaccination. The Biden administration was right to extend the vaccine requirement for air travelers to noncitizens arriving by land and by sea, a small but intelligent step. I believe that there is a reasonable case for requiring vaccination for domestic air and train travel; among other considerations, vaccinated people who suffer from breakthrough infections are less infectious than non-vaccinated people are. A highly vaccinated population is a textbook public good (non-rivalrous and non-excludable in consumption), and the creation of that public good is a legitimate use of federal power in air travel, which is subject to extensive federal oversight, and in train travel, which is mostly provided by Amtrak, a quasi-public corporation.
He then writes that:
It is not as though such modest measures would be unprecedented in the American experience. When I was in college, young men could not apply for financial aid if they had not met their Selective Service requirement, i.e., registering for the draft. The requirement was enforced in other similar ways, a combination of nagging and disadvantage. I have never fought in a war, but my veteran friends assure me it is much more disruptive and unpleasant than receiving a free, safe, effective vaccination against a potentially deadly infection.
But these two things are not the same — especially when it comes to air travel. Airlines in the United States are regulated by the federal government, but they are not run by the federal government. By contrast, both the the Selective Service and the financial aid system to which Kevin refers (FSA) were run by the federal government. (So is non-citizen access to the border, over which it has plenary power.) Clearly, there is a big difference between the federal government’s saying, “if you want to take advantage of this federal benefit, you must sign up for this federal duty” and the federal government’s using its limited (but, for once, applicable) powers under the Interstate Commerce Clause to instruct a private company that it must impose a given rule upon its customers. We can reasonably argue over the merits of either course (I disagree strongly with Kevin there, too), but we shouldn’t pretend that they are equivalent, or that one serves as a useful “precedent” for the other. They exist in different political realms, and should be treated as such.