Tuesday Talk*: De Blasio’s Mandate

Gertrude Warning: I’m vaxxed and boosted, and think everyone should be. What follows has nothing to do with whether getting vaccinated is a good thing or not, but whether New York City’s lame duck mayor, Bill de Blasio, can do what he just did.

New York City unveiled plans on Monday to require on-site employees at all private businesses, from bodegas to multinational banks, to get vaccinated — the most sweeping local mandate in the country and one that is intended to limit the spread of the new coronavirus variant this winter.

It’s one thing for a governmental entity to mandate that it’s own employees be vaccinated. It’s one thing for an employer to mandate that its own employees be vaccinated. It’s a different “one thing” for a city to mandate that businesses open to the general public require that entry be denied to anyone unvaccinated.

But it’s something entirely different for a government to mandate that a private business require its employees to be mandated. By what authority does the Mayor of New York City, or any mayor, or any governmental official, get to issue such a mandate?

The mandate, almost certain to face legal challenges and to pose difficulties for the employers tasked with enforcing it, will apply to about 184,000 businesses. It is set to take effect on Dec. 27, just days before Mayor Bill de Blasio leaves office.

While the vaccination rate in New York City appears to be doing pretty well, estimated at 90% according to the Times, that still leaves a lot of people unvaccinated. This is going to have some significant consequences for employers, particularly small businesses.

George DiGuido, the owner of N.Y.C. Pet, a pet store with several locations in Brooklyn, said he thought that the mandate could hurt small businesses.

“If you have a small company of five or six employees, and let’s say two or three of them haven’t been vaccinated, you’re practically out of business,” he said. “Because to find a new employee is extremely hard.”

And that’s just one variation on a theme that could play out in a great many ways. But even if you don’t care about George’s business survival because you hate puppies, how does BdB  plan to make this happen?

He added that the rules could include penalties.

“It is part of life that there have to be some consequences,” he said.

So SWAT teams it is, and pity the poor puppies awoken by flashbangs. But what law empowers the mayor to issue such a mandate, and then penalize private businesses who fail to comply?

Mr. de Blasio said he was confident that the new mandate would defeat any legal challenges and noted that past city mandates had been upheld.

“They have won in court — state court, federal court — every single time,” the mayor said in an appearance on MSNBC.

Not to question the accuracy of anything asserted on MSNBC, but “confidence” isn’t actually  the same as authority. Then again, courts have been particularly accommodating of mandates, which I suspect is a product of the huge number of deaths and judges tacitly mumbling “inter arma enim silent lēgēs.” 

But this mandate is different. This mandate goes where no mandate has gone before. This mandate crosses a line by making private business subject to government control. You might love it or you might hate it, but how you feel about it has nothing to do with whether there is any authority for it.

And if it’s allowed this time, presumably under the guise of a health emergency, what other health emergencies will permit the government to control private business decisions? What other private business decisions will be subject to control under this emergency, since COVID is more deadly to people with co-morbidities such as obesity and hypertension, which is more prevalent for black employees? Can the mayor mandate that employers provide black employees with health club memberships, or that employers cannot require them to come to work and be exposed to the new variants, but must pay them anyway?

The city’s corporation counsel, Georgia M. Pestana, said that the city’s health commissioner clearly had the legal authority to issue a mandate to protect New Yorkers during a health crisis.

“Clearly” is what people say when they have nothing of substance to offer. Is there legal authority to do this, and if so, what are the consequences?

*Tuesday Talk rules apply.

57 thoughts on “Tuesday Talk*: De Blasio’s Mandate

  1. Quinn Martindale

    “ This mandate crosses a line by making private business subject to government control.”

    This is absurd Scott. In the Anglo-American tradition, private business has been subject to government control since the 13th century assize of bread and ale. States have had public health laws since the founding, and the Supreme Court specifically upheld a universal vaccine mandate in the much-discussed Jacobson v. Massachusetts (1905). This falls very comfortably within the state police power. The only legal challenges to state public health rules that have seen any success during the pandemic have been based on discrimination against religious organizations. It’s the very lack of exceptions that make this rule likely to be upheld.

    1. Miles

      We’ve all grown used to you spewing pseudo-legal nonsense, but Jacobson does nothing to further your cause here, it being a statutory mandate imposed on all residents of Massachusetts, not a mayoral mandate on private business.

      But this ignores the real question. Is there any government dick you won’t blow when it serves your ends? I’ve never seen anyone so utterly hypocritical when it comes to adoring or hating unilateral government power than you. You just want to wear the boot, and the rest is just you coming up with some insanely idiotic excuse as to why you get to put it on someone else’s neck.

      1. Quinn Martindale

        State and local governments have mandated vaccines for a century, and no court has ever held it went beyond their authority despite repeated challenges. The Supreme Court just declined to block Maine’s vaccine mandate for health workers two months ago. If anything is “pseudo-legal nonsense”, it’s the idea that “private business” is exempt from government regulation in the face of nearly a thousand years of common law precedent. Even during the Lochner era, New York City had the power to forcibly quarantine Typhoid Mary rather than allow her the freedom of contract to work as a cook in private businesses.

        1. Miles

          I am shocked, SHOCKED, to see how swiftly you dive down the rabbit hole of legal gibberish to defend your utterly empty argument. A thousand years of common law precedent is my new favorite.

          No one said private business is exempt from government regulation, but the alternative isn’t the government can not only regulate everything but that it can do so whenever Trump deBlasio commands it. Dipshit.

          1. Dilan Esper

            It’s not “whatever deBlasio commands”. It’s vaccine mandates. There’s all sorts of things deBlasio has no authority to order. But, at least constitutionally (I am no expert on New York law so perhaps there is some valid state law challenge to what deBlasio is doing), yes, a local government has the power to impose this sort of mandate during a deadly pandemic. This power has been recognized for over a century and has antecedents several centuries back.

            1. Miles

              The difference between how a lawyer would approach the issue and a non-lawyer is that the local authority resides in the NYC Council, if there is authority at all. The mayor has no authority to unilaterally issue a mandate.

              The next difference is that this mandate isn’t to the general population, but to general businesses, which distinguishes it from past precedent like Jacobson.

              And the next difference is that the Constitution, both state and federal, still requires authority before infringement of liberty interests, whether it’s police power, commerce clause or something else. Saying “it’s vaccine mandates” doesn’t change that. Under what power does de Blasio “command” (yes, it’s his mandate, not the city council’s) derive? Notice how he glossed over that detail?

              I realize law is hard and requires a detailed thought process. It’s not for everybody.

            2. Dilan Esper

              Your first point may be correct, I don’t know. It is entirely possible that NYC has laws that prohibit this. Or maybe it doesn’t. I don’t know NY law.

              But I do know about Jacobson, and your last two arguments about it are based on a false premise- that Jacobson was this one-off case that upheld some very narrow mandate on very narrow grounds and that any case that comes along in a slightly different posture comes out differently.

              And that’s just wrong. Jacobson confirmed a power that had been recognized as part of the state and local “police power” throughout American history dating back to the colonies (Washington imposed a smallpox inoculation mandate in his army), and derived from the powers that English towns and cities had to take action to stop the bubonic plague centuries earlier.

              And Jacobson was then applied in numerous other cases, including another SCOTUS case involving school vaccination mandates (Zucht v. King), and has been repeatedly applied by lower courts as well, in a variety of factual situations. Jacobson not only stands for its own holding, but a broad constitutional doctrine that states have almost plenary powers to require people to get vaccinated.

              And if anything, the law is even clearer with respect to regulating businesses. Jacobson was decided in an era when constitutional scrutiny of business regulation was still a real thing. Post-West Coast Hotel v. Parrish and Williamson v. Lee Optical, business regulations need only a rational basis, and the rational basis can be anything a legislature might hypothetically have thought of. Under that test, a vaccine mandate aimed at businesses is easily constitutional.

            3. Miles

              I see that the distinctions I’ve expressed have flown over your head. Maybe I’m overthinking this. Maybe not. We shall see. Be well and wear a mask, Dilan.

  2. delurking

    Can the mayor mandate that an employer must send an employee home (or at least out of the place of business) if the employee has visible symptoms of illness?

    “…what other health emergencies will permit the government to control private business decisions.”

    We have courts to engage in these line-drawing exercises. They are great at that, right?

  3. LocoYokel

    Hasn’t this already been basically addressed by the courts at the federal level with the 2 separate injunctions blocking mandates? Yes, I know different jurisdictions and agencies but I would think that unless NY has some specific language allowing this type of thing you would expect the courts to follow the reasoning and leads already presented.


    Will New Yorkers go along with this new mandate, or will they fill the streets with protesters against it. The city is already reeling from previous mandates that financially destroyed businesses and put people out of work.

    The people get what they voted for and sometimes they get it good and hard. Perhaps the new mayor will do away with this twelfth hour mandate, if that’s possible.

  5. Jake

    If not for the rules about links at this here saloon, one could be forgiven for leaving a comment with nothing more than a link to a page on the City of New York’s website. It helpfully curates links to dozens of other pages explaining the many rules, regulations, and laws a small business must follow for the privilege of operating in the Big Apple.

    Of course, knowing I’ve been wrong about the law once or twice before (because I’m not a lawyer) if this mandate is somehow different than the mandate that allows government officials to require a small business to carry insurance, pay taxes, properly clean the oven, abate asbestos, not withhold pay, carry a permit, pay local minimum wage, operate in a proper zone, limit noise, schedule health inspections, recycle, post prices, communicate refund policy, etc., etc., etc.,…perhaps just offer some clarity?

    1. Paleo

      This one forces businesses to terminate people who refuse to put a substance into their bodies that they don’t trust (note, like Scott, I’m also vaxxed and boosted). Ruining people’s lives is different than permits and noise limits.

      1. Jake

        Let’s leave the intended impact of the policy (and all these messy feelings) to the side for a moment. To the employer, from a legal and administrative perspective, how is requiring proof of vaccination cards different from requiring papers that prove your employees are American citizens?

        1. Paleo

          Again. The proof of vaccination card requires that you put a substance in your body that you’d prefer not to have there. The proof of citizenship does not.

          Your question brings up a pathetic point. Both the mayor of NY and the current President would look more unfavorably on an unvaxxed person working than they would on an undocumented person. That’s….something.

          And before you go there, illegals don’t bother me either. Lived in Texas for almost 50 years and have been around them the whole time and have no objection to people trying to feed their families. Same with the unvaxxed.

          See how easy it is to tolerate people that are different than you? Unlike Biden and Mr Mayor (and presumably you) I’d rather not see people harmed over something that doesn’t really matter.

        2. Pedantic Grammar Police

          Exactly. And while we’re at it, why not make them wear something that identifies their status. Maybe some kind of star-shaped patch or something.

    2. PK

      Hi Jake, do you mind if I shelter with you while the saloon is being invaded? You agree that the state has the authority to impose its will on the businesses, so* what does that mean for the businesses with this mandate? Take it for granted that it’s difficult to find employees right now, if you will please, and that some of them won’t get vaccinated no matter what. Do you care at all for the small businesses or workers possibly affected?

      I think our Host is reminding us what he has to trash on the daily. Let’s try to be topical.

      1. Jake

        “Hi Jake, do you mind if I shelter with you while the saloon is being invaded?” Pull up a chair, comrade.

        “What does that mean for the businesses with this mandate?” An incremental increase in administrative costs will be necessary to collect and file a copy of each employee’s vaccination card. None of this will be surprising or difficult because businesses already must collect and hold copies of other documents to prove their employees are eligible for employment.

        “Do you care at all for the small businesses or workers possibly affected?” Yes. I might bore you with all the stories about the restaurant my father owned and operated for the 15 useful years of his life, and in which I toiled for 12 hours a day, but that would be off-topic.

        1. PK

          You say you care, but how much do you really if you’re ready for the workers to go without and the businesses to shutter? You’re coming across as insensitive even if you can empathize with them like you say. Wouldn’t you rather the workers have small businesses to work in rather than Amazon warehouses?

          It’s more than incremental increases if the business can’t hire enough warm bodies to function. Or am I wrong in that?

          1. Jake

            PK, you say you want to stay on topic. Today’s question is by what authority does the Mayor of NYC create rules for businesses inside NYC. I just don’t see what my individual feelings about workers, small businesses, or vaccinations have to do with that topic.

            1. PK

              You already answered that part of the question at the end of the post in the affirmative. Now I’m inquiring about the other part of the Host’s question about what consequences you see stemming from that action. I am making it personal to you, but only in the hopes that you can see the broader picture. I’m glad, though, that you care so much about staying on topic to be adverse to sharing, but at a minimum I hope we agree too that sharing is caring, comrade.

            2. Jake

              As to the consequences to the employer, as pointed out, the administrative impact will be trivial. As to the impact on hiring and turnover, this is a complicated issue with multivariate contributing factors. Fortunately, nobody is holding a gun to anyone’s head and forcing them to own a business.

              As to the impact on unvaccinated employees with no legitimate medical excuse, what shall I say? The robed ones have already established it is constitutional to mandate vaccines. If I had my way the lot of them would be thrown on a leper’s island until they comply but I lost my father, grandfather, and an uncle to COVID last year. I may be biased.

            3. David

              nobody is holding a gun to anyone’s head and forcing them to own a business.

              Oh, Comrade. Even for you, this is idiotic.

  6. Richard Parker

    Sorry George about that business you had but Walmart and Target are fat and flush and getting more so everyday. Follow the money. Who, whom.

  7. Elpey P.

    “The city’s corporation counsel, Georgia M. Pestana, said that the city’s health commissioner clearly had the legal authority to issue a mandate to protect New Yorkers during a health crisis.”

    Health crisis is infrastructure.

  8. Paleo

    Where’s the crisis? The OSHA mandates have been pending for months, yet there’s been no workplace outbreaks, no super spreader events. Thousands going to sporting events indoors without trouble.

    If anyone were actually paying attention they’d notice that this stuff is not necessary.

  9. Hunting Guy

    So the mayor is going medievalist and bringing back whipping boys. Gotta punish the store owner for the choices his employees make in their private lives. What’s next, stocks for the unvaccinated? Having to walk in groups, ringing a bell and yelling “Unclean, unclean!”

    Hell, some fanatics have already suggested that the unvaccinated wear a symbol to show they haven’t been jabbed. Is that next?

    Yeah, yeah, public health, you have to protect me, etc.

    Got it.

    I’m glad I don’t live in N.Y.

    1. norahc

      The law of unintended consequences is already rearing it’s ugly head. Mixing among the truck drivers that bring such things as food to the bigger cities, I am hearing an increasing number of drivers are refusing to deliver anywhere there is a vaccine mandate, or where proof of vaccination is required. This will drive up shipping costs, which will result in higher consumer prices. For me, this is just one more reason I won’t deliver to NY (city or state) even though I am fully vaccinated.

      There’s been ample time to mandate vaccines using the legislative process, but to this point nobody has tried that route yet.

  10. Sgt. Schultz

    Just here to note that this is a very difficult question, which may explain why (at least thus far) only the non-lawyers have anything to say about, save Quinn, who I’m absolutely certain you pay to troll us because nobody could be that completely and consistently full of shit.

    Had the NYC Council issued the mandate that all residents be vaccinated or else, that might have flown under Jacobson. But this? I can’t see any lawful basis for a mayor to unilaterally mandate all private business to do as he commands. Maybe there is one. Maybe someone will raise a legit reason. Or maybe we’ll just get more empty noise from the non-lawyers or nonsense from our adorable Quinn. I’m open to learning.

    1. Charles

      Ch. 2 § 28(a) of the NYC™ Charter provides that the council “shall have power to adopt local laws which it deems appropriate, which are not inconsistent with the provisions of this charter or with the constitution or laws of the United States or this state, … for the preservation of the public health, comfort, peace and prosperity of the city and its inhabitants.” Ch. 1 § 8 says nothing about the mayor having any such powers.

      Apparently the new system of government is to pass whatever laws and regulations a politician wants—especially if they are about to leave office—and let the courts sort it out later, with no consequences to the politician.

    2. Quinn T Martindale

      The lawful basis for the health commissioner to issue the order comes from Chapter 22 of the New York City Charter, which has the same broad authority as the vast majority of other local governments. This is a really easy question as to authority, and I’ll wager a $100 donation to our host (on pain of ban) that there isn’t a final judicial determination blocking the order as beyond the health commissioner’s authority.

        1. PK

          Asking a question sincerely. How does “Except as otherwise provided by law, the department shall have jurisdiction to regulate all matters affecting health in the city of New York and to perform all those functions and operations performed by the city that relate to the health of the people of the city” not allow the department to mandate vaccines?

          Then it gets worse. “The board of health may embrace in the health code all matters and subjects to which the power and authority of the department extends.” §558(c)

          Then the health code is a search away and it tells me: “Where urgent public health action is necessary to protect the public health against an imminent or existing threat, the Commissioner may declare a public health emergency. Upon the declaration of such an emergency, and during the continuance of such emergency, the Commissioner may establish procedures to be followed, issue necessary orders and take such actions as may be necessary for the health or the safety of the City and its residents.” §3.01(c)

          And the emergency power is beyond the more general statement of authority “Subject to the provisions of this Code or other applicable law, the Department may take such action as may become necessary to assure the maintenance of public health, the prevention of disease, or the safety of the City and its residents.” §3.01(b)

          I really don’t mean to be dumb. I don’t know the answer, but it looks like there’s at least a plausible legal basis for what the mayor is doing. Please someone correct me, and I’m sorry for quoting this stuff but you linked part of it, so you can’t fault me for reading it.

            1. BBA

              A mandatory measles vaccination order under those authorities was upheld by an appellate court last year, C.F. v. New York City Dept. of Health & Mental Hygiene, 191 AD3d 52 [2d Dept 2020].

              The order is a terrible idea, but nonetheless appears to be valid under New York law.

              The law is an ass.

    3. Kathryn Kase

      DiBlasio’s emergency authority is not founded in the city charter, but in NYS Executive Law article 2-B, section 24(1), which empowers the chief executives of local municipalities (mayors, in this case) to “promulgate local emergency orders to protect life and property or to bring the emergency situation under control.” Scott correctly asks if the vaccine mandate for private business is a bridge too far when an estimated 90 percent of City residents have been vaccinated. Complicating the answer is that not all employees nor all patrons of City businesses are City residents (and thus part of the estimated 90 percent vaccination rate).

      I will be interested to see whether City Corporation Counsel asserts in the appellate courts that the emergency order is necessary to protect life or is necessary to “bring the emergency under control.”

      Scott also asks by what authority DiBlasio can impose a penalty for failure to follow the emergency vaccination order. If I had more time (and we weren’t coping with COVID down here in Texas), I would review Article 2-B for the answer.

      1. Sgt. Schultz

        It’s nice to see someone appreciate some of the nuance of the issue. It’s not clear to me how elastic the emergency power of 24(1) is. We’re more than 18 months into the pandemic, and that’s more than enough time for legislative response rather than executive fiat, and as you see, the imposition on businesses in general raises issues that might not survive rational basis test (Dilan’s “easy” notwithstanding).

        Why not every resident? Why not everyone entering the city? Why not every subway rider? Why businesses that don’t involve public contact?

        No doubt this will be challenged, the arguments made and a court (or a few) will decide.

    4. Rengit

      Yes, this is the overarching question to me: if state and local officials have the direct authority under Jacobson to make vaccination mandatory (and it’s reasonably clear they do, although there may be some questions about what level of penalty is constitutional), then why go through this rigamarole where the Mayor’s office is using its authority to regulate businesses to indirectly mandate vaccination for workers, who are the real target of this action? Why the workaround? Do they think it’s just bad optics/politics to force people directly through government authority, so instead delegate it to private businesses and letting them enforce it? I am skeptical of this trend towards de facto privatization of enforcement of government mandates and laws, since it is much less transparent and accountable.

  11. B. McLeod

    The businesses can either tie it up in court until the fool is gone, or simply close for a few weeks on the 15th, and reopen when he’s gone.

  12. MGould

    The original post seems to say that this mandate is entirely new and presumably beyond the pale because of the nature of the mandate itself, not because it was issued by the mayor rather than a legislative body. Leaving aside the specific question of DeBlasio’s authority under the NYC Charter, what is the argument that a government couldn’t pass such a mandate? If it could mandate all persons under its jurisdiction be vaccinated, why couldn’t it mandate that all businesses under its jurisdiction only use vaccinated employees on site?

  13. Skink

    This should probably be a response to someone, but that can’t be done within the rest of the day. Even for TT, there is far too much needledickery raging in this here Hotel. For those that don’t do law, including those sad souls that can’t get into a courthouse without killing themselves, a sign has been posted in the bar:
    The Fucking Issue is not with General Government Power, but the Authority of the Executive Branch, which is the Mayor.

    Now, stop with the dumbassity.

    Happy Hour has been cancelled–the bartender says she ain’t putting up with this shit.

    1. norahc

      Glad to see the swamp people still speak plainly and clearly. Guess I should buy the bartender a drink.

  14. JR

    No one covered the obvious:

    the most sweeping local mandate in the country and one that is intended to limit the spread of the new coronavirus variant this winter.

    The vaccine, like all vaccines, merely primes the adaptive immune system, B cells and T cells, to protect the body from severe illness from COVID-19 when the actual virus SARS-CoV-2, infects the individual. It will not limit the spread of the virus. Period. The virus, being airborne, lands where it wishes, followed with subsequent symptoms. Some have mild symptoms, some no symptoms, some worse symptoms, and those unvaccinated and vaccinated can both get severe symptoms.

    It is difficult to believe a politician can mandate a vaccine on anybody so as to limit the spread when nothing of the kind is claimed scientifically nor in the product FDA approved label.

    From the FDA label on the Pfizer vaccine, COMIRNATY:

    12.1 Mechanism of Action
    The nucleoside-modified mRNA in COMIRNATY is formulated in lipid particles, which enable delivery of themRNA into host cells to allow expression of the SARS-CoV-2 S antigen. The vaccine elicits an immune response to the S antigen, which protects against COVID-19.

    Efficacy Against Severe COVID-19:

    Efficacy analyses of secondary efficacy endpoints supported benefit of COMIRNATY in preventing severe COVID-19

    1. outlier

      At the risk of straying further off topic, but not wanting JR’s statement to go unchallenged… there is evidence that vaccinated people, if infected, shed less virus and for shorter periods of time. So vaccination does limit the spread of the virus.

      1. JR

        there is evidence that vaccinated people, if infected, shed less virus and for shorter periods of time

        You do not understand immunology. Memory T cells, CD8 specifically, and CD4 less so, are the anti-viral machines intracellularly, not the vaccines. If a person sheds less virus, it is only because their CD8 T cells have deactivated the virus (viruses can not be killed) intracellularly, after infecting the host. The host still gets infected. The virus travels airborne indefinitely. There is nothing to limit its spread. There is no Israeli-like Vaccine/Iron dome to shoot down the virus mid-air.

  15. JK Brown

    We still live with employment customs that came about in England in the wake of the Black Death. The 1349 Statute of Laborers, imposed wage caps, compelled all able-bodied to labor on demand, and as a consequence of wage caps, set the prices of staples. It was modified over the centuries. In 1388, Statute of Richard II sons over the age of 12 were compelled to follow their father’s trade, more wage fixing, but also restriction of servants to their hundred (county) and requiring letters of recommendation for changing employers. The wage caps fell by the wayside in the 16th century under Elizabeth I as populations recovered, but the Statute of Laborers wasn’t repealed in Britain until 1869.

    What comes out of a calamity tends to become infrastructure. Sometimes in hard pipe as post 1918 pandemic, engineering books advised to install steam boilers that could heat the house on the coldest day of the year, wind blowing, with the windows open in response to the advisory to fresh air that became the Fresh Air Movement. That NYC building steam system that compels you to open the windows in winter, well, that’s the way it was designed if it dates from the 1920s.

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