Can Government Mandate the COVID Vaccination?
our century’s clearest case of “necessity is the mother of invention,” the
COVID-19 pandemic has spurred the development of vaccines on a timescale that
is orders of magnitude faster than that in which vaccines are typically
produced, tested and approved.
Spurred by enormous outpourings of national treasure and effort, companies
Pfizer and Moderna secured emergency use authorization for their COVID vaccines
less than one year after the first COVID case was diagnosed on US soil.
Vaccines produced by other companies including Johnson & Johnson,
Novavax and AstraZeneca, also may be in line for FDA consideration.
vaccines certainly protect the individual, for society to control, contain or
even eliminate the SARS-CoV-2 virus that causes COVID-19, a large percentage of
the public will need to develop immunity to the disease, through illness or
Scientists still debate the percentage of people who need to be immune for
COVID to be contained, with estimates ranging from 60% to 85%, depending on
whom and when you ask. It
is axiomatic, however, that the more people you vaccinate, the closer you come
to containing the epidemic.
To have the best chance of establishing this population-level immunity and to protect the health and healthcare resources of the United States, the incentive is intense for government to convince members of the public to accept vaccination. While, as of February 2021, the vaccine is still a scarce resource with more demand than supply, agencies and governments around the country are even now launching massive public information campaigns to convince people to vaccinate when their turns arrive.
vaccine supply outstrips demand, which seems inevitable in a matter of months,
the question becomes what steps the government can take to persuade, cajole and
even coerce people to vaccinate. After all, significant percentages of the
population have expressed hesitancy to take the vaccine, as
polls show that as many as 30% of nurses declined the vaccine when offered in
December and January.
threshold question needs to be treated separately on the federal and state
levels. Let’s start with the states.
the authoritative word on the question comes from a case more than 115 years
old, Jacobson v. Massachusetts.
There, the Supreme Court upheld the authority of Massachusetts to enact a
compulsory vaccination law. The state could “require and enforce” the inoculation
of all adults with the smallpox vaccine.
of the Jacobson case were featured in two other COVID-related cases over the
past several months, both cases discussing the constitutionality of state
limitations on religious services on COVID-related restrictions. The cases were
the dissenting opinion in Calvary Chapel Dayton Valley v. Sisolak
in July, and Roman Catholic Diocese v. Cuomo in November.
opinions distinguished forced vaccination from the question of COVID-based
restrictions on worship, but neither denied the validity of state-mandated
vaccination programs under Jacobson.
Court framed the vaccination issue as one of personal privacy, a right inferred
in the Constitution in a long line of cases starting with Griswold v.
Connecticut in 1965.
Bodily integrity is included in privacy. Nonetheless, government may restrict
even a fundamental right when such is necessary to achieve a compelling
government interest, and the government’s interest in public health is
telling passage from the Cuomo case implies a limitation, though, on the
power to invade “bodily integrity” in this manner. In distinguishing Jacobson
from other COVID restrictions, the Court observed that the penalty for failing
to get vaccination in Jacobson was only a $5 fine (about $140 today) and
that exemptions were available. Thus, it is unclear whether the Court would
sanction a harsher penalty or more sweeping vaccine mandate. Still, from the
failure of the Court to overrule or even criticize the Jacobson case, we
can probably safely assume states are empowered to at least nominally force
vaccinations, possibly on pain of a moderate fine for those who refuse and with
reasonable exemptions made available.
next question becomes whether the federal government can enforce a
nationwide vaccine mandate. This is a critical question because many state officials
have already indicated fierce reluctance to impose vaccine mandates. Even
if some states passed vaccine mandates, many others would undoubtedly balk.
Vaccine mandates that are geographically limited are not as likely to have the
desired effect of achieving the needed population-level immunity.
the states, the federal government has no general police power.
Its power to legislate people’s day-to-day activities comes largely from its
power to regulate interstate commerce. Federal
employment laws, food and drug laws, regulation of air, train and road travel
and communications regulations come from this commerce power.
seems unlikely that Congress’ commerce power would allow it to mandate vaccines
on a nationwide level. While the commerce power has been applied to uphold
federal criminal laws against racketeering and loansharking,
anti-drug laws and
regulation of the healthcare industry, the Supreme Court had not allowed
Congress to regulate non-economic activity or to require people to participate
in commerce. For example, Congressional attempts to criminalize guns in school
and to create a federal cause of action for gender-motivated violence
were considered beyond the scope of federal authority because they did not
regulate economic activity. While COVID vaccinations on a nationwide scale
certainly have significant economic impacts as more vaccinations may allow
greater opening of the nationwide economy, it is hard to argue that getting
vaccinated itself constitutes economic activity.
in the landmark 2012 Supreme Court case on the validity of the Affordable Care
the Supreme Court ruled that the commerce clause does not give Congress the
ability to force people to engage in commerce (in that case, to force people to
obtain health insurance). So, even if getting vaccinated is economic activity,
Congress could not necessarily force people to engage in it.
it seems that the states can mandate vaccinations, but the federal government
cannot. There are additional, more limited, methods of indirectly coercing
vaccinations. Many schools, public and private, are required by law to ensure
that all students prove that they have been inoculated with certain basic
vaccines, such as the MMR shot, before being allowed to attend.
There is no reason to believe this same structure would not be allowed in the
case of COVID vaccines. Moreover, employers (and government agencies acting as
employers) may also mandate vaccinations as conditions of employment, as the
Equal Employment Opportunity Commission confirms in its guidance.
The Center for Disease Control already requires a negative COVID test (or
evidence of recovery from COVID) before flying into the US on international
and there is no reason to believe that these rules could not be updated to
incorporate vaccinations (either to require vaccinations or to exempt the
vaccinated from testing requirements).
sum up, there are many instruments in the hands of policymakers to encourage
and even coerce people to accept the COVID-19 vaccines. However, the one
overarching solution that would be most likely to achieve the goal of
population immunity, a nationwide federally enforced vaccine mandate, is likely
beyond the scope of federal power. But we will continue to monitor the legal
analysis of this important constitutional issue as it evolves.