Alameda first

Emmanuel Macron did it.

Bill DeBlasio did it.

The Los Angeles city council is considering doing it.

And San Francisco mayor London Breed has not ruled out doing it, either.

So why shouldn’t our own Mayor Marilyn Ezzy Ashcraft – or the Alameda City Council – do it, too?

We’re referring, of course, to the mandates issued by M. Macron, the president of France, and Mr. DeBlasio, the mayor of New York City, requiring people under their jurisdiction to furnish proof of vaccination (or a recent negative coronavirus test) in order to gain access to bars, restaurants, and other indoor venues.

Monsieur Macron announced his vaccine mandate on July 12; the French parliament passed implementing legislation on July 26; and the country’s highest court upheld it on August 5.  Under the rule, beginning August 13, all adults wishing to enter bars, gyms, restaurants or cafes, and those who travel on long-distance train and bus rides, will need to present a “Pass Sanitaire.”  To obtain the pass, people must provide proof of completed vaccination, a recent negative coronavirus test, or immunity through infection.  (On September 30, the measure will expand to include anyone over the age of 12.)

The French president told reporters he empathized with people who were hesitant to get their shots, but he criticized others who held “irrational, sometimes cynical and manipulative” opposition to the vaccines.  He added:

A freedom where I don’t owe anything to anyone doesn’t exist. What is your liberty worth if you tell me you don’t want to get vaccinated? And tomorrow, you infect your father, your mother or myself. I am a victim of your freedom. . . . That is not called freedom. That is called irresponsibility, selfishness.

Mayor DeBlasio announced last Tuesday that the vaccine mandate in New York, which he would put in place by mayoral executive order, would take effect on September 13.  The new program, called “Key to NYC Pass,” is not a particular document (like the Pass Sanitaire), but rather what the mayor called a “strategy” of requiring proof of vaccination for workers and customers at restaurants, bars, gyms, theaters, and other indoor settings, including Broadway shows.  To enter those places, patrons must use the city’s new app, the state’s Excelsior app, or a paper card from the Centers for Disease Control and Prevention to show proof of vaccination.

“When someone is vaccinated, they can do all the amazing things in New York City,” the mayor said at a press conference.  “If you’re unvaccinated, unfortunately you will not be able to participate in many things.”  He added, “This is crucial, because we know this will encourage a lot more vaccination.”

Meanwhile, in Los Angeles, City Council President Nury Martinez and Councilman Mitch O’Farrell introduced a motion last Wednesday that would require Angelenos to demonstrate that they’ve received at least one vaccination dose in order to be allowed to enter indoor places such as restaurants, bars, retail stores, gyms, spas, movie theaters, stadiums and concert venues.  “Enough is enough already,” Ms. Martinez said in a statement.

In San Francisco, Mayor Breed is still on the fence – but she is close to falling off.

Initially, Ms. Breed’s spokesperson told the San Francisco Chronicle that the mayor had no immediate plans to order businesses to insist that patrons show proof of vaccination, but she was “exploring ‘all options’ to get more people vaccinated.”  Later, she endorsed the policy adopted by the San Francisco Bar Owners Association, which represents 300 bars in the city, requiring proof of vaccination or a recent negative coronavirus test for customers to enter their establishments.  And last Tuesday, Ms. Breed tweeted that the city’s department of public health would offer appointments to send a mobile unit to vaccinate groups of between five and 12 people at their home or office.

As of August 8, no California city has taken the same leap as France and New York City.  Mayor Ashcraft and her colleagues thus now have the opportunity to beat not only Los Angeles and San Francisco but most of the rest of the country to the head of the parade.

Assuming, that is, that a vaccine mandate would be a good idea for Alameda.  According to the City’s website, as of August 4, 90.2% of Alamedans 12 and older have received at least one dose of a vaccine, and 77.5% are fully vaccinated.  Would a vaccine mandate enable the city to go the rest of the way?  And would it offer protection against infections brought to town by non-resident visitors?

Well, we’re not scientists or doctors, but we are students of Harvard Law Professor Cass Sunstein and his writings on the most effective ways for a government to get its citizens to do something that is good (or not do something that is bad) for society as a whole as well as for themselves as individuals.  If one believes that getting as many people vaccinated as possible is good – and we know of no responsible public-health professional who disagrees – then the strategy employed in France and New York City makes sense.

The government officials aren’t proposing to bribe people to get vaccinated.  (They tried that, and it didn’t work.)  Nor are they threatening to fine people who aren’t vaccinated.  (Imagine the outcry if they took that route.)  Rather, they are seeking to induce people to “do the right thing” by withholding a benefit if they don’t.  It sounds like an acceptable “nudge” to us.

[Ed. note: After this piece was posted, we returned to our stack of Sunday newspapers and came across an article in the New York Times by University of Chicago economics professor Richard Thaler, the co-author (with Professor Sunstein) of “Nudge,” in which he analyzed the alternatives available to governments and businesses for increasing vaccination rates.  He concludes: “It would be good public policy if those who refuse to be vaccinated are compelled to spend more time alone.”]

Others who may not consider themselves Sunstein disciples have endorsed this approach.  As Robert Siegel, a Stanford professor of microbiology and immunology, wrote in a Chronicle op-ed,

Many people think that motivations come in two forms – the carrot and the stick.  The vaccine passport scenario is more like a carrot/stick.  In this crudités approach, unvaccinated individuals would be denied privileges that they took for granted in the pre-COVID era and that were completely denied to everyone in the lockdown era.  The carrot, of course, would be the right to enter treasured venues.

For vaccinated individuals, patronizing restaurants where everyone is vaccinated can have additional health and psychological benefits, by greatly decreasing the risk of breakthrough infections.

We can also speculate on the positive economic impact of such a policy. Because of the decreased risk, more vaccinated people – like me – will be motivated to go out to eat, particularly those who are risk-averse.  Although this policy would exclude a segment of the population, the majority of Bay Area residents are already vaccinated, and these individuals may be more likely to patronize such places.  This strategy would also eliminate the negative publicity and lost business from needing to close due to an outbreak on-site.

Professor Siegel concluded:

Being vaccinated prevents serious illness to the individual and offers community protection to friends and family, especially those who can’t be vaccinated, such as children, or the immunocompromised, who may not be well-protected by vaccination.  And it benefits the world at large.  Reducing the overall prevalence of infection decreases the further spread of the virus and the emergence of additional variants.

As in France, anyone willing to give up their right to eat out or to frequent stores or events may retain their right to remaining unvaccinated.  But many others may be enticed to join the growing ranks of the vaccinated and enjoy the many health, economic and psychological privileges that vaccination confers.

To us, the professor makes a persuasive case.  Libertarians and others may disagree.  Indeed, President Macron’s decision prompted street protests throughout France, and the New York Post denounced Mayor DeBlasio’s policy on the grounds that it “is only going to delay the city’s recovery.”  And we would expect that, as in France, any vaccine mandate imposed by a U.S. city will end up in court.

Nevertheless, the idea of adopting a vaccine mandate in Alameda might appeal to certain members of our City Council.  Other “progressive” cities may have renamed public areas sooner than they did.  Other “progressive” cities may have defunded the police more drastically than they did.  But now our local “progressive” politicians could be the first to do something that goes far beyond the merely symbolic or the mostly ineffectual.

And they shouldn’t reject the idea out of hand just because the Merry-Go-Round is the one who suggested it.

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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12 Responses to Alameda first

  1. I love the Macron quote, “I am a victim of your freedom”.

  2. JRB says:

    Requiring proof of vaccine might seem extreme, but the situation is pretty extreme even right here in Alameda. A worker at Cafe Jolie reportedly contracted COVID and died, so the restaurant was closed most of the week last week. It’s a small thing to help protect workers and customers. [Ed. note: We have not independently verified any report about the death of a Cafe Jolie employee.]

  3. Mike McMahon says:

    As of Aug. 2, more than 164 million people in the United States were fully vaccinated against Covid-19, according to the CDC. Fewer than 0.001% of those individuals — 1,507 people — died and fewer than 0.005% — 7,101 people — were hospitalized with Covid-19.

  4. Alex Petrich says:

    It appears that the only way to get these hold-outs vaccinated is to bar entry to restaurants and (especially) bars if they are not vaccinated. They clearly do not care about the welfare of others, and many rely on magical thinking with regard to their own well-being if exposed to the Covid. I do not consider the Mayor to be a particularly courageous person, so it may be pointless to encourage her to take this step. But it is worth a try.

    • JRB says:

      I’m not sure why the unnecessary jab at the Mayor. Unlike Oakland (strong-mayor system), in Alameda we have a weak-mayor system where the power lies with the city council as a whole, so the mayor has a more ceremonial role and can only act on things that has majority support. Throughout the pandemic, Mayor Ashcraft has been front and center – radio broadcast updates, PSA videos, weekly townhall meetings, economic support for struggling businesses and renters, expanding services for homeless, etc, and most of her votes have been on the right side of things. I do believe there’s strong interest within council to try this. I actually think this could get unanimous support, because it’s something all of us should be able to rally around without getting politics involved.

    • Spending your money with gutsy aplomb says:

      I deeply respect the mayor’s courage. It’s takes true bravery to our spend money on an unrecognized Indian tribe’s “tax,” to openly tout a UBI that is manifestly unaffordable, to forthrightly refuse to hire police, and to never disappoint the fire union.
      A genuine profile in courage.

      • Observer says:

        Nailed it.

        I sympathize with your desire just to go out to dinner and be safe, but….

        Did you know there is a thriving business among young people in fake vaccine IDs? Did you also note that across the USA the Black and Hispanic population is the least vaccinated per capita and a ban might not pass constitutional muster. In NYC, 40% of the unvaccinated are minorities. This is attributable in part to lack of access to healthcare, vaccine hesitancy due to various statements of leaders like Biden and Harris distrusting the “Trump” vaccine in the lead up to the election, and historical mistrust of medicine in poor communities. This is also true in the NBA, NFL, and MLB. If you look at statistics, the jabs started to go down when the government announced the J&J vaccine wasn’t effective. And of course the CDC announcement that you can carry the Delta variant and infect others even if vaccinated has Americans scratching their head.

        I’m vaccinated, but I am sure most people would not exclude unvaccinated Black and Brown people from restaurants as it harkens back to the days of Jim Crow. I have no illusions about being “safe” other than herd immunity.

      • JRB says:

        Spending your money:

        The fact that you are still using the word “Indian” in 2021 tells the whole story.

        The mayor voted for lateral hiring bonuses to poach police officers from other departments, and voted to increase police staffing to budgeted level.

        The fire union did not endorse her.

        You are 0 for 3.

      • Observer II says:

        Yep. That’s why next year we’ll see Trish as mayor of Alameda again. The mayor is the leader behind all these zany ideas, but she has no backing. The fire union wont support her, especially after voting no on the recent thing.

        They will instead support Malia who has no where to go except for the mayor’s office.

        Which opens the door for a Trish come back.

      • NeverTrish says:

        Sorry but Trish Spencer is not coming back as mayor. She’s way too crazy for today’s Alameda and she only won 2 of the last 3 elections with fewer than 130 votes. She won as mayor in 2014 only because Marie Gilmore had a tragedy in her family and did not campaign, and won in 2020 because Amos split Jim Oddie’s progressive votes (and the fire chief thing did Jim no favor either). She came third in most precincts in Alameda, and only got a lift from enthusiastic Trump supporters in a couple of Bay Farm neighborhoods. Trump is not running in 2022.

        While she might have a rabid but small group of supporters, she’d need lots of luck again to scrape together another win.

      • David says:

        ” I am sure most people would not exclude unvaccinated Black and Brown people from restaurants as it harkens back to the days of Jim Crow.”

        Hmm…. I’m not so sure about that….

        Jim Crow exclusion was based on who people inherently were/are.

        Vaccinated or not is not about who they “be” – it’s about whether or not they have made a choice in responsibility to the greater community.

        Granted, we owe it to black and brown bodies to eliminate the systemic racism that makes them distrustful of the medical community and resistant to vaccines.

  5. 3 for 3 with a double and 2 ribbies says:

    Why did I say “Indian?” Because is the official name used by the Federal government. Call Joe if you don’t like the name:

    https://en.wikipedia.org/wiki/Bureau_of_Indian_Affairs

    Police hires. Were they hired? Is staffing still 20 short?

    Fire. She voted for their rapacious contracts.

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