President Joe Biden had not even finished announcing the details of his new plan to reduce the spread of Covid-19 Thursday when the criticism started pouring in. Using executive orders and agency directives, he mandated the full vaccination of all federal employees, federal contractors and Medicaid- and Medicare-funded health care facility workers. He also directed the Labor Department to draft an emergency rule requiring private companies with 100 or more employees to ensure their workers are either fully vaccinated or take weekly Covid tests.
While there don’t appear to be any constitutional grounds for reversing Biden’s rule for private business, there could be other legal challenges.
The Federalist characterized the mandates as fascist. Arizona Gov. Doug Ducey, South Dakota Gov. Kristi Noem and the Republican National Committee promised to sue the administration. And numerous critics far and wide characterized the president’s vaccine-related rules as “unconstitutional.” The backlash is likely only to increase because Dr. Anthony Fauci recently said he’d support a vaccine mandate for air travel.
The ferocity of the outrage suggests there is some considerable uncertainty about the constitutionality of Biden’s plan, or at least thorny and complicated legal questions based on competing Supreme Court precedents. But in fact, the constitutionality of what Biden intends to do is fairly straightforward so long as the courts follow settled precedent.
The federal courts have uniformly rejected constitutional challenges to government vaccine mandates, so long as they don’t single out one demographic group in a way that’s discriminatory. The Supreme Court has done so since the 1905 case Jacobson v. Massachusetts, when a smallpox epidemic swept through the Bay State. To stem the disease, the Board of Health of Cambridge, Massachusetts, passed an ordinance that criminalized by a $5 fine the refusal of anyone over 21 years of age to be vaccinated against the variola (smallpox) virus.
Henning Jacobson — the then-pastor of the Swedish Evangelical Lutheran Augustana Church of Cambridge and an immigrant to the United States — refused on the grounds that he had been made ill by a childhood vaccination. He also argued that the vaccine mandate amounted to the imposition of paganism: “Can the free citizen of Massachusetts, who is not yet a pagan nor an idolater, be compelled to undergo this rise and to participate in this new — no, revived form of worship of the sacred cow?”
After being criminally prosecuted, Jacobson appealed his case to the Supreme Court, arguing there that the vaccine mandate violated his due process right to bodily integrity. In other words, the pastor contended that the forced vaccination deprived him of his constitutional right to make autonomous decisions about his own body. In a 7-2 decision that remains the law today, the high court rejected that challenge.
As the court explained, Americans do not have a constitutional right to harm their fellow citizens by refusing a vaccine and, thereby, serving as a disease vector. Justice John Marshall Harlan, who wrote the opinion, explained, “the liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. . . . On any other basis, organized society could not exist with safety to its members.”
Harlan espoused the social compact theory of public health regulation. He noted that the Massachusetts Constitution considers “fundamental” the “social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the ‘common good.’”
Harlan, however, didn’t stop there. Jacobson has withstood the test of time because it also explicitly recognized that the government’s power to mandate vaccination is constitutionally precluded from compelling any person to take a vaccine that will harm that person’s health.
Biden’s plan adheres to these dictates. Unlike the board of health’s law at issue in Jacobson, not only does Biden’s large, private employer proposal not criminalize vaccine refusal, but it also does not even require anyone to submit to a vaccine — employees can take a regular Covid test instead. The proposals that apply to federal employees, federal contractors and health care workers likewise must include a medical exception to the vaccine to satisfy Jacobson, which is widely expected to be part of the rule when written.
Compulsory vaccination laws have also withstood constitutional challenges in the lower federal courts based on the free exercise clause of the First Amendment guaranteeing the freedom of religion. Though Justice Antonin Scalia didn’t address vaccines directly, he wrote for the majority in the 1990 case Employment Division v. Smith that the clause does not relieve an individual from complying with a law that applies to the general population and does not directly single out a particular group. The “test or vaccinate” emergency rule for private companies satisfies this standard.
Congress was unhappy with the Smith decision when it was handed down, however, and in response passed the Religious Freedom Restoration Act in 1993. The act requires the federal government to have a compelling interest in order to enact a law that impinges on religious freedom, restraining lawmaking more than in many other realms. Federal agency rules that substantially impede religious practice also must be the means of accomplishing the policy goal (here stopping the spread of the disease) that is the least burdensome to religious adherents.
The test or vaccine mandate seems to satisfy the act because routine Covid screening is the least restrictive means to advance the federal government’s compelling public health interest. And Biden’s press secretary announced last week that the federal employee vaccine mandate will include both medical and religious exemptions, so it will not provoke any legitimate challenge to the act.
So while there don’t appear to be any constitutional grounds for reversing Biden’s rule for private business, there could be other legal challenges. As prominent legal scholars have noted, there is no question that the yet-to-be-drafted emergency rule likely raises novel statutory and regulatory legal issues — those concerning laws made by Congress or rules made by federal agencies.
The Labor Department’s Occupational Safety and Health Administration is only entitled by statute to enact an emergency temporary rule if exposure to the virus constitutes a “grave danger” and its test-or-vaccine rule is “necessary to protect employees from such danger.” I agree with other legal scholars that an OSHA test-or-vaccine rule can clear even this very high bar so long as the rule is narrowly tailored to workplaces where Covid transmission to unvaccinated employees is highly likely, applies only to unvaccinated employees — since they pose the most risk to others — and includes a testing option.
Of course, a single decision by a maverick court could place in disarray not only critically important workplace safety laws, but also the long-standing social compact theory of constitutional public health law that limits your freedom to swing your arms where my nose begins. That could potentially place the health of all of us at the mercy of fellow citizens who claim that their liberty interests are infringed by the government’s demand that they produce a weekly negative Covid-19 test or get vaccinated.