Early in the pandemic I wrote an article on Federal vs State Covid-10 Authority. I don’t remember the exact date I wrote it but it was early in the pandemic. I am going to say maybe the fall of 1987 or so.

The article discussed the federal government’s ability to intervene in the health crisis through the Commerce Clause of the Constitution as opposed to the ability to control the spread of Covid within their borders through the 10th Amendment. As you recall, the article was brilliantly written. I say that only because I am sure nobody remembers it.

Well, now the fine folks in the government have kicked it up a notch.

As you are no doubt aware, using executive orders and agency directives President Biden mandated the full vaccination of federal employees, federal contractor, and Medicaid/Medicare- funded health care facility workers. Not too terribly surprising really.

However, he also directed the Labor Department to prepare an emergency rule requiring private companies with 100 or more employees to ensure that their workers are either fully vaccinated or tested weekly for Covid.
This, as they say, is a different animal all together.

Of course, the words were no sooner out of his mouth that folks started to threaten to sue. Looking at you Gov. Doug Ducey (AZ), Gov. Kristi Noem (SD), and the Republican National Committee. Other folks just characterized the rules for private business as unconstitutional.

From a jaded, cynical lawyer’s perspective the threats of litigation and claims that the rules violated the constitution are a bit premature as of the date I am writing this article the Labor Department HAS YET TO WRITE THE RULES.

But let’s forget all that and ask the question that based on his statements would it appear his mandate plan is constitutional. The short answer is it certainly appears so.

Of course, the wheels could fall off once they actually start drafting the rules. However, with some care, it seems like his rules for private business could pass muster.

Quite simply, the federal courts have rejected constitutional challenges to vaccine mandates in the past provided they do not single out one demographic group in a discriminatory manner.

In Jacobson v. Massachusetts, way back in 1905, the Supreme Court found that “Americans do not have a constitutional right to harm their fellow citizens by refusing a vaccine and, thereby serving as a disease vector.”
The facts of this case may sound somewhat familiar. At the time a smallpox pandemic was working its way through Massachusetts. To help stop the spread the Board of Health of Cambridge, Mass passed an ordinance that imposed a $5 fine on anyone over 21 years of age who refused to be vaccinated.

Jacobson, a Lutheran pastor, refused on the grounds that he had gotten sick from a childhood vaccination. He also argued that the vaccine mandate amount to the imposition of paganism – which I am not even going to discuss.

As expected, Johnson was criminally prosecuted and on appeal argued that the vaccine violated his due process rights to bodily integrity. In other words, he said that vaccine deprived him of his constitutional right to make decisions regarding his own body.

In a 7-2 decision, the court disagreed with Mr. Jacobson. Moreover, in the opinion, Justice Harlan noted the social compact theory. This basically means that as a society covenants with each citizen and each citizen with society to be governed by laws for the common good.

Another reason that the decision is still relevant is because Justice Harlan recognized that the government’s power to mandate vaccines does not include the ability to compel a person to take a vaccine that will harm their health.

It is also interesting that arguments vaccination laws have withstood challenges based on the free exercise clause of the First Amendment freedom guaranteeing the freedom of religion.

Though not a vaccine case, in 1990 the Supreme Court found that the clause does not relieve a person from complying with a law that applies to everyone and does not single out a particular group. Based on what we have heard it does not appear that President Biden’s rule for private companies violates this rule.

At the end of the day, the key thing to remember about President Biden’s mandate is that it does not criminalize a refusal or require anyone to submit to the vaccine. You are given the choice. Get vaccinated or take a weekly Covid test. Moreover, it does not appear to single out a particular group. Rest assured, this is not by accident. I am sure President Biden had several lawyers much smarter than me help him work this out.

Of course, that does not mean it can’t head south and the actual language of the rule when written prove problematic. It also does not mean that folks won’t sue or argue that the rule is unconstitutional on other grounds. There are several clever lawyers out there and they may be successful. I guess the point that I am trying to make is that the President and his lawyers appear to have done their homework and were already thinking about playing defense when the President spoke.

Tags: