On the Legality of Mandatory Vaccinations Rules for Highly Communicable Diseases

I presume it’s a no-brainer in most states that if a private employer wants to require that employees be vaccinated or wear masks on the jobs then the employer can do this unless the employee has a legitimate medical reason not to, in which case there would be an ADA issue. If the objection is religious (e.g. Christian Scientists), there would be a claim for a reasonable accommodation if one can be arranged.

But what if it’s the government making the order? Leaving aside for a minute the issue of the policy wisdom of a governmental mandatory vaccine order, does the Constitution permit the government, state or federal, to require obedience to a state’s duly promulgated mandatory vaccination rule, assuming the rule has exceptions for medical and religious reasons?

Comes now the 7th Circuit, in a 3-0  opinion written by no less than Judge Easterbrook, to say in Klaassen v. Trustees of Indiana Univ. that this is not a hard case at all:

Given Jacobson v. Massachusetts, 197 U.S. 11 (1905), which holds that a state may require all members of the public to be vaccinated against smallpox, there can’t be a constitutional problem with vaccination against SARS-CoV-2. Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough protection for their interests and that courts should not be as deferential to the decisions of public bodies as Jacobson was, but a court of appeals must apply the law established by the Supreme Court.

Plaintiffs invoke substantive due process. Under Washington v. Glucksberg (1997), and other decisions, such an argument depends on the existence of a fundamental right ingrained in the American legal tradition. Yet Jacobson, which sustained a criminal conviction for refusing to be vaccinated, shows that plaintiffs lack such a right. To the contrary, vaccination requirements, like other public-health measures, have been common in this nation.

Again, wisdom and legality are not the same thing, but as far as legality is concerned this is I think absolutely correct on the law as it relates to mandatory vaccination rules. 

I would venture to guess that the federal government could justify a similar rule under the commerce power. I would also venture to guess that the extension of the vaccination rule to a state (or federal) masking rule for the duration of an epidemic would not be very difficult.

This entry was posted in Civil Liberties, COVID-19, Law: Constitutional Law. Bookmark the permalink.

5 Responses to On the Legality of Mandatory Vaccinations Rules for Highly Communicable Diseases

  1. Diego Audette says:

    Excellent post Michael. What are the chances that the federal government makes covid-19 vaccination and mask wearing (in the interim) mandatory? I hate to be a pessimist but will likely take another few waves (and years) of mass covid cases/deaths for this to happen. If it does happen, like Jacobson v. Massachusetts, the next step should be to hold state legislators (e.g., Gov. DeSantis) and public influencers (e.g., Tucker Carlson) criminally accountable for consciously putting the public’s health at risk despite validated, empirical, scientific evidence opposing their actions.

    In the mean time, what are the chances that DeSantis stops worrying only about seeing his children smile and starts worrying about reducing covid transmission rates, reducing covid hospitalization cases, and seeing his children (and all children) stay healthy and alive? (Unfortunately, I’m not holding my breath.)

  2. Eric says:

    Does anyone truly not understand that the Germans used “public health” to identify and segregate the Jews because their science claimed they carried disease?

    Medical tyranny requires strict scrutiny – it’s too easy to abuse the public trust by a few greedy people at the highest levels of world influence behind the scenes that undoubtedly plays a part in national policies.

    Based on the logic of this case, we should go back to sterilizing people for the greater good as well since those policies and segregation are definitely engrained in the American tradition as “common” health measures.

    • I gather you are not aware that we have a lot of existing vaccine mandates in the US already? E.g. for kids to attend school?

      Arguments of the form “the Germans did it” must be treated with caution. I suspect most Germans ate breakfast. I don’t think breakfast leads inevitably to tyranny.

      You final paragraph is so offensive that I considered disemvowelling it pursuant to paragraph 2 of the comment policy. You have been warned.

      • Eric says:

        So you want to censor me now?

        It’s meant to show how utterly disgraceful the entire American tradition has been from day 1 with racism and eugenics and yet you still think the powers that be are your friend.

        History repeats because human nature does not change and quite frankly the vaccine mandates have always been wrong.

        The only reason I comment here at all is to see the evolution of thought from a scholar of privacy and freedom. It’s very troubling that you are now planning on censorship because you don’t like the parallels in history.

      • Eric says:

        And by the way, has eating breakfast ever been used as a starting point of tyranny?

        Because I’m going to suggest to you that a policy creating a segregation status which subsequently led to horrors in all of human history is the point of my analogy.

        So I would be curious if you or any of your other readers find it troubling in the least that claims of disease-spreading classes of people are being created by the government and media.

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