Current constitutional issues related to vaccine mandates

by Scott Bomboy, National Constitution Center, August 6, 2021

The Covid-19 delta variant’s spread may force federal and state authorities to re-examine public safety policies related to vaccine requirements. Here is a brief review of the constitutional precedents and laws related to mandates at the federal and state levels.

In general, two key Supreme Court decisions speak to the authority of state and local officials to issue vaccine mandates.  Generally, these decisions concluded that these governments may tell people to get vaccines, unless they belong to an exempt group, or face a penalty. In 1905, the Supreme Court ruled in Jacobson vs. Massachusetts that under a state law local health authorities could compel adults to receive the smallpox vaccine. Henning Jacobson refused a free smallpox vaccination that was mandated by the city of Cambridge; he was fined five dollars as a result. Jacobson argued the vaccination law violated his 14th Amendment due process rights.

Justice John Marshall Harlan, writing for court’s majority, concluded that states under their general police powers had the ability to enact vaccine laws to protect citizens. Police powers allow a state to pass laws to protect the health, safety, and general welfare of the public. “It is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health,” Harlan wrote.

The second decision, Zucht v. King in 1922, arrived at a similar conclusion. San Antonio, Texas, excluded students from public and private schools who were not vaccinated for smallpox. This included the challenger in the case, Rosalyn Zucht. Her attorneys argued the vaccine policy violated Zucht’s 14th Amendment due process rights. Justice Louis Brandeis wrote in the Court’s decision that “long before this suit was instituted, Jacobson v. Massachusetts, had settled that it is within the police power of a state to provide for compulsory vaccination.”

According to the Congressional Research Service’s most-recent analysis, the general principles in Jacobson and Zucht form the basis for modern vaccine mandate policies, even though the Court’s interpretations of the 14th Amendment have changed since 1922.

In a recent lawsuit, a federal court declined to grant an injunction against a public university’s vaccine mandate. Eight Indiana University students had sued the school over a mandatory vaccine policy that blocked students from registering for class if they were not vaccinated. Under the university policy, students could apply for a medical or religious exemption if they agreed to wear masks and undergo Covid-19 testing. On August 2, 2021, a federal appeals court upheld a lower court ruling in favor of the university, finding there was not enough evidence that the students’ constitutional rights were being violated;  the decision may be appealed to the U.S. Supreme Court. Another recent lawsuit filed by a law professor at George Mason University has challenged that school’s vaccine mandate as well.

Related We The People Podcast: Are Vaccine Mandates Constitutional?

However, the broad powers held by states to control vaccine policy can also be used by state governments to block vaccine mandates, in certain situations, at lower government levels and in the private sector. As of August 2, at least 14 states had enacted Covid-19 related laws that barred employer vaccine mandates, school vaccine mandates, or vaccine passports.

At a federal level, the vaccine mandate question is more complicated. With few exceptions, the CRS says there are no laws that allow the federal government to issue a vaccine mandate to the general population. These exceptions include requiring proof of vaccination for immigrants requesting permanent resident status and vaccine mandates for military service members—allowing for certain exemptions. Recently, President Joe Biden ordered federal employees and contractors to attest to getting vaccinated or undergo weekly testing and other safety protocols.

According to the CRS, several federal vaccine mandate actions are theoretically possible. The Executive Branch could cite Section 361 of the Public Health Service Act (or PHSA), which allows the Department of Health and Human Services or the Centers for Disease Control and Prevention (CDC) to make necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

Under the Constitution’s Spending Clause, Congress could provide financial incentives for states to enact mandates.  It could also regulate vaccine requirements related to interstate travel under the Commerce Clause.  But any federal actions to enforce or incentivize vaccine mandates may face legal challenges based on the 10th Amendment’s prohibition on commandeering or forcing states to use their own resources to carry out federal policies.

In addition, several federal laws allow for vaccine exemptions for employees based on religious beliefs (under Title VII of the Civil Rights Act of 1964) and disability status (under Title 1 of the Americans with Disabilities Act). The U.S. Equal Employment Opportunity Commission confirmed these exemptions in May 2021. “Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations,” the commission said in a statement.

The allowance of vaccine exemptions based on religious beliefs, in particular, will remain an important question as the debate grows over vaccine mandates at the federal and state levels, as well as in the private sector. As of May 2021, 44 states and the District of Columbia had laws that allowed students to claim a religious exemption to immunizations, while 14 states allowed for philosophical exemptions.

In the Indiana University case, state attorney general Todd Rokita protested the school’s initial policy, which required proof of vaccination.  Rokita said the policy conflicted with a new state law that now bars vaccine passports in the state. The university then changed its rules to allow students to attest to their vaccine status online without presenting proof.

To be sure, there will be more controversy over vaccine policies, especially as they apply to schools and businesses as the Covid-19 situation remains unsettled.

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Scott Bomboy is the editor in chief of the National Constitution Center.