Can Government Mandate the COVID Vaccination?




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Can Government Mandate the COVID Vaccination?

In 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.[1] 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,[2] Novavax and AstraZeneca, also may be in line for FDA consideration.

While 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 vaccination.[3] 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.[4] 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.[5] 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.[6]

Once vaccine supply outstrips demand, which seems inevitable in a matter of months,[7] 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,[8] as polls show that as many as 30% of nurses declined the vaccine when offered in December and January.[9]

This threshold question needs to be treated separately on the federal and state levels. Let’s start with the states.

Surprisingly, the authoritative word on the question comes from a case more than 115 years old, Jacobson v. Massachusetts.[10] 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.

Discussions 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[11] in July, and Roman Catholic Diocese v. Cuomo in November.[12]

Both 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.

The 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.[13] 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 certainly compelling.

A 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.

The 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.[14] 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.

Unlike the states, the federal government has no general police power.[15] Its power to legislate people’s day-to-day activities comes largely from its power to regulate interstate commerce.[16] Federal employment laws, food and drug laws, regulation of air, train and road travel and communications regulations come from this commerce power.

It 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,[17] anti-drug laws[18] 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 zones[19] and to create a federal cause of action for gender-motivated violence[20] 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.

Moreover, in the landmark 2012 Supreme Court case on the validity of the Affordable Care Act,[21] 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.

So, 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.[22] 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.[23] The Center for Disease Control already requires a negative COVID test (or evidence of recovery from COVID) before flying into the US on international flights[24] 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).

To 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.