» KEY POINTS
- The 1905 court case Jacobson v. Massachusetts seems to give the right to mandate vaccines, but does it apply to the Federal Government?
- Even if it does, would this Congress pass a law to make it possible? Or can existing law be bent enough to fit the purpose? And what compulsion mechanisms are legally available?
- Then, of course, are the questions of whether the Courts would allow such actions to continue and what could be done to stave them off long enough to make an impact anyway before any rulings are made?
It is within the police power of a State to enact a compulsory vaccination law, and 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 [the disease] and the protection of the public health.
Supreme Court Decision in Jacobson v. Massachusetts, 197 U.S. 11
February 20, 1905
By mid-July 2021, the United States of America had vaccinated about 48% of its total population against COVID-19, coming in at 14th in the world by that measure. This number was not nearly enough to stop community spread and reach herd immunity, which most likely is around 80%. While the United States was by far the largest country (both by area and population) in the top 15, there was great disparity across the land. At the top of the list was Vermont at 66% of its total population and on the complete opposite end was Alabama at 31%.
And it was not from lack of access or unavailability of vaccines for the most part, even in the most rural places in America (though some of this did exist, especially on Tribal Lands). Where nearly 8,000 people were dying around the world every day due to COVID-19 and other countries were begging for doses, within the United States it was necessary to turn to monetary lotteries and literally knocking door-to-door in the hopes of getting vaccination rates up. At that juncture and against all odds, the issues were mostly related to hesitancy, one that was mired in personal politics of various kinds.
This is why there was such a difference between States and even sub-divisions within States. For instance, at the time, Georgia’s Chattahoochee County topped the entire country with almost its entire population vaccinated. On the other end of the State in Long County just 3% were fully vaccinated. The statistics went deeper into towns and cities themselves with great differences between neighborhoods. Each one of these pockets—whether the size of a country, State, county, city, or block—allowed SARS-CoV-2 to mutate and spread variants. The numbers were clear: in areas with lower vaccination rates there were more variants, more cases, and more deaths.
Thus, the question became: what more could be done? The carrot was not doing the trick, so was it time for the stick? If it was, was there a potential stick to leverage?
» PAST PROLOGUE
Based upon the quote at the top of this chapter from the Supreme Court Decision in Jacobson v. Massachusetts, it appears that since 1905 it has been legal to compel people to be vaccinated against their will. As such, it would seem that President Joe Biden could have just signed an Executive Order to use “the police power of the state” to forcibly jab people in the arms against their will in the name of “prevention” and “public health”. Just before that statement, the decision noted:
The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community... should have power to dominate...
The precedents set in this case have been used many times since, including on June 12, 2021 for the case “21–1774—Bridges, et al. v. Houston Methodist Hospital et al.” In this trial, Houston Methodist Hospital in Texas required all employees to be vaccinated for COVID-19 by a certain date otherwise they would lose their employment. Those who had been suspended and were about to be fired sued to prevent that, but they were stopped in their tracks by the Federal Court that forcefully ruled in favor of their employer. Judge Lynn N. Hughes of the United States District Court Southern District of Texas stated in part in her opinion:
[Plaintiff] also argues the injection requirement violates public policy. Texas does not recognize this exception to at-will employment, and if it did, the injection requirement is consistent with public policy. The Supreme Court has held that (a) involuntary quarantine for contagious diseases and (b) state-imposed requirements of mandatory vaccination do not violate due process.
With that statement she placed a footnote to the aforementioned Jacobson v. Massachusetts case. Ten days later, the majority of those in the class were let go or resigned with very little recourse, at least in the short term. It would seem, then, that nothing would block the way from taking a more direct approach to increase vaccination rates.
However, there are several factors within this case and the United States judicial system that may not give the President that type of carte blanche decision making.
» COLLECTING THE STONES
At the top of the list is the question of whether President Biden, any future President, and the Executive Branch in general have any authority over vaccine mandates and enforcement. First off, within the decision of Jacobson v. Massachusetts it stated:
The safety and the health of the people... are, in the first instance, for that [State] to guard and protect. They are matters that do not ordinarily concern the National Government. So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take...
In other words, the courts recognized the “State’s right” to use its police power to make a vaccine mandate, but specifically called out the “National Government” as one that is not normally involved in such things. True to these words, coming in to the 2020s, all 50 States and most of the Territories had laws that compelled at least some type of vaccination—although the majority had exceptions for things like deeply held religious beliefs. On its website, the Center for Disease Control and Prevention (CDC) noted how it was completely dependent upon States for enforcement of their decrees and guidance.
Despite this, in November 2021, President Biden signed an executive order directing the Occupational Safety and Health Administration (OSHA) to require COVID-19 vaccinations for the vast majority of American workers. It was a novel interpretation of OSHA’s vested powers, but one the Supreme Court found lacking and struck down by mid-January 2022—while at the same time upholding a similar decree for healthcare workers.
Yet, this was not the only path President Biden could have taken. There was, perhaps, a better option; one that could still be implemented by this or another President in any ongoing or future pandemic.
On April 2, 2021, the Congressional Research Service (CRS)—another agency of the Federal Government itself—released a report aptly titled State and Federal Authority to Mandate COVID-19 Vaccination. A surprisingly succinct read, the report begins Section 2 with this clear statement:
Except in certain limited circumstances, including in the immigration and military contexts, no existing federal law expressly imposes vaccination requirements on the general population.
Thus, at first glance, it would appear that nothing could have been done because Jacobson v. Massachusetts specifically stated that the compelling power must come from “legislative enactment”. Without any federal-level legislation, neither President Biden, any future President, nor any of the Executive Departments and agencies would have authority to take any actions, not to mention forceful or punitive ones.
Further, the makeup of Congress in the 2020s meant the chances of getting legislation through that would create a vaccine mandate were slim at best. Even with an evenly divided Congress or one with a Democratic majority, there were enough hesitant members of the caucus to not guarantee passing a mandate of any kind through some type of reconciliation or filibuster-breaking method.
That all said, this case being more than 115 years old means the Court at that time was not privy to later laws and decisions. Congress has been able to use the Commerce Clause of the Constitution to pass a large number of public health laws and agencies to enforce them. As a matter of fact, this authority was used just one year after this case to pass the Pure Food and Drug Act, which eventually gave way to the Food and Drug Administration (FDA) that still exists in the 2020s. This particular usage of the Commerce Clause has been upheld by the Supreme Court, so the Federal Government could—in theory—create some type of vaccine mandate around it. Says the CRS report:
According to [the Supreme Court]... the Commerce Clause did not empower Congress “to regulate individuals precisely because they are doing nothing.” While it is uncertain whether this conclusion constitutes binding precedent, it suggests that a direct federal mandate on individuals to receive a vaccine may be susceptible to challenge because such mandates could be construed as compelling individuals who are “doing nothing” to engage in the commercial activity of receiving a specified health care service. On the other hand, a federal mandate that requires vaccination as a condition to engage in existing economic activities, such as employment or interstate travel, may raise fewer [C]onstitutional concerns.
So perhaps Congress could have created a law that met this narrow definition, although as already established the Congress of the 2020s was highly unlikely to do so. But what if they already did and just did not know it? In the CRS examination, the authors note that Section 361 of the Public Health Service Act (PHSA) gives the Health and Human Services Department (HHS) and CDC the unique and specific power:
[T]o make and enforce regulations necessary “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.”
That certainly sounds like Congress has written a law that gives those agencies the necessary power. Therefore, based upon that, the President could in turn write an Executive Order to tell those agencies to enact this policy.
Despite that, even here the President could run into a wall. The law requires the action to be “necessary” and the Courts use a test of “reasonableness” to determine what that actually is. While it might be easier to argue for a quarantine being “necessary” to stop transmission, it is a much larger ask to force someone to put something into their body against their will. If transmission can be stopped by other means or if the harm is not high enough for the Courts to consider the actions “reasonable”, then there is no way this could be used. Says Anastasia Boden—Senior Attorney at the Pacific Legal Foundation—in part from a blog post on April 14, 2021:
Government actions must be reasonable under any circumstances, and what is defined as reasonable may change based on the facts. It doesn’t mean that when there’s an emergency, the government suddenly has more power and the courts must simply defer to that power. There is no world in which the government should enjoy the right to be unreasonable—even in a public health emergency.
Each situation has to be looked at on its own merits. Earlier within the same posting, Ms. Boden made an equally salient point:
[Jacobson v. Massachusetts] stemmed from a smallpox outbreak in New England at a time when the disease was still highly lethal. At the height of smallpox epidemics in the late 1800s, fatality rates reached as high as 80%, and even those who were infected and recovered were left with nasty, permanent scarring.
Thus what Ms. Boden is supposing here is that due to smallpox’s potential for harm, the Courts found the vaccine requirement was reasonable. Is that the same for COVID-19 or other diseases that are far less lethal and dangerous in the long term? While most may say “yes”, it is no guarantee that the Courts would agree. There is a lot of risk here.
But let us assume for now that the Courts do agree, or at the very least put off a decision until action has been taken for months without any type of injunction. What, then, could those actions be? Returning to Ms. Boden:
Jacobson did not say that the government could hold you down and stick a needle in your arm. It said the government could, under certain circumstances, pass a law requiring you to get a vaccine or pay a $5 fine (about $150 in today’s dollars). So, the decision doesn’t necessarily support the idea that vaccination can be legally compelled.
And there is the real rub. The original case dealt with a Massachusetts law that said local (town/city level) health agencies could impose a vaccine requirement using the fine system if they felt it was necessary. That is exactly what happened, and one man—who did not meet any of the exceptions in the law—was fined and did not think he should have to pay. At the end of the day, all the Supreme Court did was force him to hand over $5; he never did get vaccinated for smallpox.
Physically forcing someone to do an action is most likely not going to hold up in any Court. Besides, mandates are meaningless without an enforcement mechanism. For that, the aforementioned CRS report highlights:
Under Section 368 of the PHSA, violators of regulations issued under Section 361 are subject to statutory penalties of up to one year in jail or a fine..., or both.
Specifically, the report notes that there are other statutes of the law related to sentencing that the CDC has incorporated in the past and could use again that:
Subject[s] violating individuals to a fine up to $100,000 if the violation does not result in death, or a fine of up to $250,000 if the violation results in a death.
With these laws, it appears as if HHS and CDC can fine and potentially jail people for non-compliance. This would give the President and the rest of the Executive Branch the enforcement mechanisms necessary to carry out a vaccine mandate for the masses.
Based upon all of this we can say that IF:
- Existing Federal Law can be wrought for this purpose;
- States do not try to override this with their local and more relevant police power over people; and
- The Courts do not put in any type of injunction or rule that the approach is unreasonable;
Then the President could maybe, possibly write an Executive Order directing HHS and the CDC to make vaccines a requirement (with certain exceptions due to health or deeply held religious beliefs) and to fine and arrest those who refuse to do so, especially if their actions result in someone else’s death.
» ORDERING A SIDE OF FRIES
Of course, we have been basing all of this logic on a Supreme Court case that was decided in 1905. It is important to remember that opinions of the Court are not law; they are interpretations of the law and the Constitution. Says Sarah Fujiwara, MD in the American Medical Association (AMA) Journal of Ethics in April 2006 (Virtual Mentor. 2006;8(4):227–229. doi: 10.1001/virtualmentor.2006.8.4.hlaw1–0604.):
The Court follows the doctrine of stare decisis, which directs it to follow existing judicial decisions when the same points arise in litigation unless there is sufficient justification for departing from precedent. In this case the Jacobson Court’s ruling has stood—not allowing a single individual to refuse vaccination while he or she remains within the general population on the grounds that to make such an exception would strip the legislative branch of its function to care for the public health and safety when threatened by epidemic disease.
Therefore we can assume that any President would have a decent chance of prevailing in the Courts at the lowest and appeals levels. Those Courts are bound by this precedent and, frankly, during the COVID-19 pandemic, President Biden only needed to delay any decision long enough to increase COVID-19 vaccination rates. Even should the Supreme Court have overturned his position and made the government refund and cancel all of the fines, he may already have coerced enough people into getting vaccinated to make all the difference in the world.
During Biden’s first year, the Supreme Court was not set to start hearing cases until October 4, 2021 and the docket was already rather full. If he had acted much earlier, and somehow the case against the President, HHS, and CDC went through all appeals levels before then (Jacobson v. Massachusetts took three years to reach the Supreme Court), the Court may not have had a spot available to hear the case. Even if they did, a ruling would not have been expected until May or June 2022.
True, the Supreme Court could have, in the short term, put a preliminary injunction in place if it looked like the plaintiffs would suffer irreparable harm, but the lineup of the Supreme Court in 2021 seemed less likely to do so. They had already let many contentious programs—such as those related to border control—continue even when they later ruled them against the law or found the actions to be un-Constitutional. Given that their own precedent was that vaccines could be mandated so long as there was legislation to back them up, and the worst that could happen was someone paid a fine (i.e., easily repairable harm), then they would most likely have let the program continue until they made a ruling. The reasons for striking down the mandate related to OSHA were technical; there was no decision on mandates in general. Again, that is why the mandate for healthcare workers was allowed to stay in place—it met their procedural limitations.
Given that, even if the groundwork is shaky, the President may as well attempt to make the vaccine for COVID-19 or some similar future disease mandatory. The worst that could happen is that the Supreme Court will find the President overreached his power and force the government to give back or cancel any fines and maybe pay the lawyer fees of the plaintiffs. It would hardly be a rounding error in the budget of the United States Federal Government. In the meantime, while the Courts were considering the merits, the program could continue, meaning the President should be able to push a large number of hesitant people into getting vaccinated, which is the whole point. Mandates are not about collecting money or putting people in jail; they are about using a medical tool to stop the spread of a dangerous organism, end people needlessly dying, and allow America to have some semblance of normalcy.
Yet there is a risk in going before any Supreme Court, nonetheless the ideologically skewed version of the early 20202s. While the hope is that the Courts would rule narrowly on just the President’s actions, there is nothing stopping them from having a much broader opinion. The Supreme Court could say the decision in 1905 under Chief Justice Melville Weston Fuller was in error and that no legislature can enforce a vaccine mandate of any kind for any reason. Many of the justices on the Supreme Court in 2021 had expressed a great interest in revisiting past decisions and deciding them in totally different ways.
And we must be fair about this because some opinions do need to be revisited. While we may want to laud the Fuller Court for this specific case, not everything they did was so wonderful. For instance, in 1901 they decided a number of situations that became known as the “Insular Cases”. Without going into too much detail, these cases decided how the Territories of the United States—such as Puerto Rico—should be treated and that only “some” parts of the Constitution applied there, and that several rights were “fundamental” while others were not. Which are which? That is still fought over in the 2020s, but it allows people who are born in a Territory like American Samoa to be called “nationals” instead of “citizens” and the rights of citizenship and free movement refused to them.
Further, in 1908 this nearly identical group (one Associate Justice had been replaced) voted 7 to 2—the same as they did in Jacobson v. Massachusetts—in favor of a racist law with Berea College v. Kentucky, 211 U.S. 45. In this case, the Supreme Court affirmed the idea that a State could pass a law requiring the separation of races and could compel private institutions to enact said policy. Further, through the Court’s opinion, they expanded the idea of “separate but equal” and led the way for decades of suffering under Jim Crow and decades more of dealing with the generation-spanning repercussions. What is one of those repercussions? People of color are less likely to trust the government in general and especially when it comes to law, medicine, and authority. Further, due to the loss of generational wealth going all the way back to slavery, they are more likely not to be able to take the necessary time off from work or have as easy access to vaccination clinics. In early July 2021, the Kaiser Family Foundation found in an analysis of CDC data:
[T]he percent of White people who have received at least one COVID-19 vaccine dose (47%) was roughly 1.4 times higher than the rate for Black people (34%)...
The terrible decision in Berea College v. Kentucky directly caused at least some of the COVID-19 vaccine hesitancy in the Black Community. Thankfully, the rulings in Berea College v. Kentucky were overturned by Brown v. Board of Education of Topeka, 347 U.S. 483 in 1954, as they should have been. Unfortunately, as seen in these statistics, the damage was done. In the end, the point really is this: let us not pretend for a moment that what the Fuller Court decided over a century ago is a panacea of good intentions that we are forever bound to.
Was Jacobson decided correctly and Berea College decided incorrectly? Were both poorly reasoned opinions? Should President Biden or another future President choose to pursue this path, he stands the potential of overturning over 115 years of affirmed State power around public health. Is that risk worth it? What chaos could ensue should the Supreme Court throw out this authority? Jacobson v. Massachusetts has been hardly challenged in all of this time. Should the Supreme Court sitting in the early 2020s be the one that hears that contest?
That leaves the President with one last move. Just before the case would be heard before the Supreme Court, he could cancel his Executive Order, throw away all outstanding fines, refund all fees that had been collected, and pardon anyone who had been jailed. In that way, there would be no order to argue and there would be no harm that could be claimed by anyone. The point would be moot and the Supreme Court would be forced to dismiss the case on a technicality. Again, the idea is to get as many people vaccinated as possible, not to punish them for not doing so. If all of these actions got even 10% more of total population vaccinated, then it would have totally been worth it!
» THE PLAN COMES TOGETHER
Could President Joe Biden or some future President use a stick to compel hesitant people to get the COVID-19 or some other necessary vaccine? The answer appears to be “yes, sort of”, but with a very particular set of circumstances and a lot of risk. However, if he:
- Signed an Executive Order instructing HHS and CDC to use their authority under Section 361 of PHSA to mandate the vaccine;
- Referenced Jacobson v. Massachusetts as “stare decisis” reasoning;
- Made sure there were noted exceptions in his order for things like deeply held religious beliefs and health-related reasonings;
- Instructed HHS and CDC to use Section 368 of the PHSA to fine and/or jail people who refuse to be vaccinated;
- Fended off a preliminary injunction and delayed as long as possible any court proceedings using all legal tactics and tricks available;
- Used the time it took the case to work through the court system to coerce as many people as possible into getting vaccinated; and
- Canceled his Executive Order, refunded all fees collected, annulled any fines not collected, and released and expunged the records of anyone arrested shortly before the case would be heard by the Supreme Court—thus making the case moot;
Then yes, it certainly seems plausible to mandate any pandemic-attacking vaccine while also minimizing all potential legal and governmental hazards. Yet the other perils for anything from political fallout to pockets of armed rebellion are very real. Only the President himself can answer if those gambles are worth it.
The above piece is an excerpt from Always Divided, Never United: And Other Stories During a Time of Pandemics and Politics by J.P. Prag, available at booksellers worldwide.
Learn more about author J.P. Prag at www.jpprag.com.
An earlier version of this article appeared on Medium.
About the Creator
J.P. Prag is the author of "254 Days to Impeachment", "Always Divided, Never United", "New & Improved: The United States of America", and "In Defense Of... Exonerating Professional Wrestling's Most Hated". Learn more at www.jpprag.com.
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