Is the federal vaccine mandate constitutional? Yes, and history says so

Courtesy of Elijah Nouvelage via Bloomberg.

With COVID-19 cases on the rise once again in the United States and a worrying plateau of vaccination rates, President Joe Biden announced a vaccine mandate for all federal workers and contractors on Sept. 9 (Associated Press 2021). The mandate did, however, also include an option for continued masking and weekly testing for those who cannot receive the vaccine due to medical or religious reasons. Moreover, the Department of Veterans Affairs issued a mandate for all frontline workers at its facilities, and President Biden urged military leaders to consider compulsory vaccinations in order to more quickly reach herd immunity. The mandate proposed by Biden has come under intense scrutiny from multiple Republican politicians and voters, who accuse it of being unconstitutional (Politico 2021). At the moment, the constitutionality of the mandate necessitates further evaluation, but historical decisions regarding vaccine mandates for other diseases potentially foreshadow its eventual approval from various courts.

Firstly, it should be noted that the federal government’s ability to mandate vaccinations is completely within its constitutional authority. The Supreme Court has upheld local and state mandates twice in U.S. history. In 1905, the Court reviewed the case of Jacobson v. Massachusetts, which centered around the plaintiff Pastor Henning Jacobson’s refusal to comply with a state law requiring residents to be vaccinated against smallpox following a localized outbreak. The Court sided with the state, affirming that the law was a legitimate exercise of the state’s power and right to ensure the safety of its citizens (“Jacobson v. Massachusetts”). 17 years later, officials in San Antonio, Texas prevented a young woman from attending a public school because she also refused to be inoculated against smallpox. Arguing that she was deprived of her 14th Amendment rights, the woman’s case continued to the Supreme Court, where they once again sided with the state. The final opinion of the Court noted that, like in Jacobson, it was within the police power of the state to enforce compulsory immunization in order to ensure widespread public health and safety (“Zucht v. King”). 

Although the federal government does have the constitutional right to mandate vaccinations, some provisions remain. Typically, the Department of Labor is only able to enact regulations under existing laws which Congress has passed; however, the Occupational Safety and Health Administration (OSHA), created in 1970, can issue an “emergency temporary standard” for businesses when employees are exposed to a “grave danger.” This standard exists because the federal government deems it necessary to protect employees from what can be categorized as such a danger (United States Department of Labor 1970). One potential caveat to this loophole is the question of whether COVID-19 can be classified as a “grave danger.” Fortunately, the OSHA does have the authority to determine what falls under that categorization, and its final decision cannot be overturned by courts (“Asbestos Information Association/North America v. OSHA” 1984). Thus, it will not be difficult for the Biden administration to establish COVID-19 as a “grave danger.”  The obstacle it will face is in regard to the necessity of the overarching standard (The New York Times 2021). Historically, courts have struck down about half of the emergency temporary standards issued by the OSHA (The Observer 2021). That being said, it will be interesting to hear how the administration plans to justify the mandate’s necessity.

One question that has risen in recent weeks is whether the OSHA has the authority to issue a vaccine mandate under the standard. Although the OSHA recently issued an emergency temporary standard related to COVID-19 policies, it only applied to the healthcare industry and did not mention a national vaccination effort (The New York Times 2021). If the OSHA issues another standard that applies to millions more Americans, it will likely receive more scrutiny. Mandate critics proclaim that it is well beyond the jurisdiction of the OSHA, arguing that only employers can legally combat public health and safety threats through mandates in the workplace. To them, receiving a vaccine would be considered outside of the workplace and therefore unconstitutional (The Washington Post 2021). Defenders of the mandate believe that the pandemic in and of itself will justify the external workplace argument (Los Angeles Times 2021). Regardless, the OSHA’s authority relies on such broad language that any court can comfortably decide whether or not a vaccine mandate falls within their jurisdiction.

The constitutionality of President Biden’s federal COVID-19 vaccine mandate will draw continued debate until more courts begin to review it. Given that the Supreme Court has approved previous vaccine mandates, the hail of lawsuits filed across the country will almost certainly prove fruitless (Associated Press 2021). Although these lawsuits may prove to have legal challenges, the Biden administration appears to be prepared, evidenced by invitations for his challengers to “have at it” (The Washington Post 2021).

25 Comments

  1. Simply put….02% of Americans have died from Covid making any mandate unconstitutional because there is no public safety threat evidenced by statistics. Period.

    • Dude that’s still about 666,000 people. That would be the equivalent of the entirety of Washington DC dropping dead over the course of two years. In other news, an estimated 31% of Americans have been infected with the virus at one point, and that’s just the cases we know about. Even small-looking percentages represent massive numbers when over 330 million people live in your country. And if everyone infected with the virus needs to die in order for it to be classified as a “public safety threat” then our definition of that is pretty messed up. I’m tired of wearing a mask everywhere, not being able to live normally, and watching this country shoot itself in the foot. Yall may not like Biden’s decisions but it is an objective fact that his administration has done much more to fight the virus than the previous one, and has contributed A LOT to ending this stupid pandemic.

      • Amen!!!! Thank you someone else who sees what I do..my mother died from this she is 1 of 700000..we are supposes to be in this together…and we aren’t….

        • So sorry about your Mom.

          On the legal issue, SCOTUS will push down hard on that 700,000 number, and will likely arrive where CDC is; ie annual recorded deaths actually due to COVID are more in the range of eg, 50-70,000, at most.
          FYI: This is the amount which the CDC admits is the true death rate from COVID…aka about the same # as annual flu deaths. Also, thus far, recording flu deaths are nominal since COVID started…vs what they usually are annually. So, it will also be argued that COVID itself has an even lower death rate since “regular” flu deaths eg all but disappeared during 2020, and nobody has explained that yet.
          See CDC website.

      • In Jacobson vs Massachusetts SCOTUS affirmed a states police powers under the 10th Amendment. No such provision exists for the federal government in the Constitution. A President of the United States has no Constitutional authority to compel the citizen to take a vaccine as a condition of employment. The Constitution does not go into slumber mode when there is a pandemic. Whether you choose to live normally or not, is your right enshrined in the Constitution.

        • BINGO!
          Gotta love though how our puppet propaganda media + corrupt legal (former) scholars are nonetheless telling the Sheep that Biden can do it & its Constitutional….by conflating Court Opinions that allow States to mandate eg Smallpox vaccines (which eradicate illness) w the Feds rights to mandate vaccines that do nothing of the sort!

      • Issue A those numbers are up for debate and questionable. Odd how few died of the flu last year as compared to ANY OTHER YEAR IN HISTORY…
        Issue B the vaccine is ineffective in actually stopping anyone from getting it spreading the disease…so why mandate it
        Issue C where is the proof in the vaccines true and long term effect on my health. Shots that have been around for years are still questionable. This was pulled out in a matter of months.
        I advise everyone to use due diligence in investigating the US constitution as well as its FDA requirements I’m proving toxic chemicals. It’s sets the bar extremely low to use them and high to ban them. If you believe the government is out there watching out for your best interest, start digging the facts out. Just like Facebook, not everything you hear, especially from government officials is true or factual and rarely investigated. Biden is lip service. Sorry

    • All i know if they are really doing this mandates for a safety concern? they should stop produccing drugs or alcohol that kills on a Daily basis. any competent Adult should decide what to take or not.

    • Then why don’t you go and talk to the 700000 people that have died from it families…my mother being one of them..this is danger and it is constitutional..it is imminent threat to society..there are people dying everyday from this…
      .

      • Sorry to hear that. My mother survived after 2 month long ordeal in the hospital. That being said, those who want protection, should get vaccinated and thus be protected. Those who do not want it should be able to choose so. Clearly sick people (vaccinated or not), shouldnt be allowed into groups. But I dont think that putting sticks into someones noses(if they dont want to) to determine if positive is an acceptable screening procedure. Also, turns out that high percentage of vaccinated gets sick(Israel), and can transmitt, so where is justification for vaccine mandates if vaccines arent that effective. Also, if they are effective, vaccinated shouldnt worry. Only issue is large percentage of unvaccinated, if they get sick to stress the healthcare system. But we should be past that. It would be very strange if the virus has not circulated through the population already, it is in the population for too long.

        • And they can choose. No one is forcing people to get a vaccine. However, if you work in healthcare and pose a risk to those whose health you are responsible for, then you will need to go find another job. It is a simple as that.

          • You being vaccinated or unvaccinated you pose the same to risk, period. If you are vaxxed you still spread apparently according to all current studies. No not less if your vaxxed not more.

      • If u believe the vaccine is effective. Then u taking it should be enough for you or anyone else. My refusal to take it should not jeopardize u. Correct? So y push ur personal opinion or desires upon anyone else.

    • Couldnt agree more and SCOTUS will side w you.

      Fyi, the title of this Article is, per usual, misleading and incorrect. A more accurate (but far less intriguing title) would be, eg: “ Maybe, But Will Be UpHill Battle Under Current Legal Landscape” or even “Dont Bet On It With Current SCOTUS!”

      (Ie, US law is that States can mandate around vaccines but if fed govt wants to, it will have uphill battle proving its truly necessary…And the science does not support this view – given very low covid death rate +other treatments available + fact that covid vaccine doesn’t prevent transmission of virus + its experimental/has no long term studies + has many risks side effects, etc….)

    • Couldnt agree more and SCOTUS will side w you.

      Fyi, the title of this Article is, per usual, misleading and incorrect. A more accurate (but far less intriguing title) would be, eg: “ Maybe, But Will Be UpHill Battle Under Current Legal Landscape” or even “Dont Bet On It With Current SCOTUS!”

      (US law is that States can mandate around vaccines but if fed govt wants to, it will have uphill battle proving its truly necessary…And the science does not support this view – given very low covid death rate +other treatments available + fact that covid vaccine doesn’t prevent transmission of virus + its experimental/has no long term studies + has many risks side effects, etc….)

    • This article is silly, it says that the FEDERAL government has the authority, then gives two former cases that went before the Supreme Court ruling in the STATES favor, NOT the FEDERAL GOVERNMENT, but, the State. The 10th amendment is clear.The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  2. Actually, the mandate is unconstitutional. Side-stepping the law by requiring OSHA to make the covid vaccine required for employers with over 100 employees will also not hold water. OSHA authority will be shot down in courts quickly. Bottom line, the federal govt does not have the power to mandate Covid vaccines. The constitution doesn’t allow for a lot of flip flopping. Biden is not the ruler of this country, he is an employee of the US citizens. To think that Biden has the power to enact this mandate is laughable at best.

    • The OSH Act of 1970 does not give OSHA any power to mandate a vaccine. It has only enacted and emergency 10 times since its inception and nearly every one of those were block by the courts with the reminder being watered down until expiration.

  3. The author mis characterizes several of the court holdings of the Supreme Court and fails to understand very basic principles of constitutional law. First, the SCOTUS upheld states rights to enact vaccine mandates under the 10th amendment. This does not give the federal government the power to enact vaccines rather it held that states have 10th amendment police powers to enact mandates. The federal government has to point to an enumerated power every times it acts. There is no medical or health enumerated power – that is why the CDC can only offer guidelines and not rules or mandates and why the federal government cannot force a vaccine mandate.

    • You are correct.. In Jacobson vs Massachusetts SCOTUS affirmed a states police powers under the 10th Amendment. No such provision exists for the federal government in the Constitution. A President of the United States has no Constitutional authority to compel the citizen to take a vaccine as a condition of employment.

  4. In Jacobson vs Massachusetts SCOTUS affirmed a states police powers under the 10th Amendment. No such provision exists for the federal government in the Constitution. A President of the United States has no Constitutional authority to compel the citizen to take a vaccine as a condition of employment.

  5. The OSH Act of 1970 does not give OSHA any power to mandate a vaccine. It has only enacted and emergency 10 times since its inception and nearly every one of those were block by the courts with the reminder being watered down until expiration.

  6. Being vaccinated can be a health risk in itself. If you are vaccinated you can still get the virus and spread it there are people that can’t get it cause of major health issues we have been battling for years. If your vaccinated you can have the virus not know it and pass it on this is where the problem lies I am about to have some major health treatments that will make me even more immune compromised and if my health care worker has the virus and don’t know it they can unknowingly pass it on to me now your question will be then why don’t you get vaccinated and I will put it as simply as I can. I already had Covid and recovered took me months but I recovered so technically I should have the immunity to fight it off again and getting the vaccine takes that away also there are known side effects of this vaccine that causes things I have been fighting for over 10 years now so why would I put something in my body that will make it worse no doctor can assure me it won’t there’s a risk. So now I have to make a decision on if I will let a doctor to a surgery on my that might save my life or take the chance of the doctor having the virus not knowing it and passing it on to me during surgery and ultimately killing me so maybe set back and open up to all the issues that are truly at hand here instead of jumping to thinking everyone that is refusing the vaccine are anti vaccine when they very well could be trying to safe their own life and their immune compromised family members life not not unknowingly getting it and passing it on to them. It does come down to our body our choice just like women can choose to have abortions as a means of birth control when there are other options. So if I have to get a test before a surgery or procedure to make sure I don’t have the virus then all members of my surgical staff should too right. RIGHT. Medical freedom of choice is being taken away little by little and so many don’t even see it.

Leave a Reply

Your email address will not be published. Required fields are marked *