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).