Exploring Human Potential

The Legality of Vaccine Mandates – A 7 Minute Summary.

Posted on | September 30, 2021 | 5 Comments

Mike Magee

Later this Fall, I am teaching a 4-part course titled “The Right to Health Care and the U.S. Constitution.” In preparing for it, I’ve struggled to remain one step ahead of my future students – some of whom are lawyers.

The course itself crosses the boundaries of law, medicine, political science and history. Facts and figures and dates all matter of course, but not nearly as much as the clarion voices from past and present.

For example, there is Alexander Hamilton,  on October 27, 1787 in Federalist #1 who wrote: “It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

Most would agree that our society has yet to “decide” on this “important question.”

By Federalist #45, James Madison had taken a more conciliatory tone, an early Joe Biden if you will, as he reassures reluctant states here:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

As the current battle over vaccine mandates well illustrates, the tussle between federalists and states over respective “rights” has never been fully resolved.  Consider for example the politicization of life-saving vaccines. The power to mandate vaccines was litigated and resolved over a century ago. Justice John Marshall Harlin, a favorite of current Chief Justice Roberts, penned the 7 to 2 majority opinion in 1905’s Jacobson v. Massachusetts. It’s impact was epic.

In 1905, Massachusetts was one of 11 states that required compulsory vaccinations. The Rev. Henning Jacobson, a Lutheran minister, challenged the city of Cambridge, MA, which had passed a local law requiring citizens to undergo smallpox vaccination or pay a $5 fine. Jacobson and his son claimed they had previously had bad reactions to the vaccine and refused to pay the fine believing the government was denying them their due process XIV Amendment rights.

In deciding against them, Harlan wrote, “in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand … liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.”

Slam dunk, except for two things:

1.In 1927, the Jacobson decision provided judicial cover for Buck v. Bell. That case centered around a young Virginia girl who supporters of the Eugenics movement accused of being a product of a long line of “mental deficients.” They asked the courts to impose involuntary sterilization. In his decision, Justice Oliver Wendall Holmes wrote, ““The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes (Jacobson v Massachusetts, 197 US 11). Three generations of imbeciles are enough.” Based on that decision, 24 states moved forward and sterilized 60,000 women in the next three years.

2. A state’s right to legislate compulsory public health measures does not require them to do so. In fact, as we have seen in Texas and Florida among others, they may decide to do just the opposite – declare life saving mandates (for masks or vaccines) to be unlawful. At least 14 states have passed laws barring employer and school vaccine mandates and imposing penalties in Republican controlled states already. 

So state powers are clearly a double-edged sword when it comes to health care.

Questions anyone?

Does the Federal government have the power to come to the rescue?

NO. Judgments thus far refer specifically to states rights. These include the 1922 decision, Zucht v. King, where the decision supported a local public school district’s right to require vaccination for admission to school. In this decision, Judge Louis Brandeis wrote, “a state may, consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.”

Can the federal government forcibly require or compel you to get vaccinated in the U.S.(with exceptions for religion and disability)? 


Isn’t that what they are doing with a mandate?

NO. A vaccine mandate means the government is “setting a condition on you returning to society or participating in a particular activity.”

If a state doesn’t mandate masks, distancing, or vaccines, and a business decides to, is that legal?

With appropriate exceptions for religion and disability, when the intent is to protect employees and customers, legal scholar, Professor James Hodge,  director of the Center for Public Health Law and Policy at Arizona State University, believes YES, although this remains to be adjudicated.

If a business asks me if I’m vaccinated on entry, is that a HIPAA violation?

NO. HIPAA regulations restrict hospital and health care workers, not store clerks.

Doesn’t the First Amendment give me the right to reject vaccines?

NO. According to legal scholars: “Freedom to believe in a religion is absolute under the First Amendment. However, freedom to act in accordance with one’s religious beliefs ‘remains subject to regulation for the protection of society.’”

Didn’t the FDA “Emergency Use Authorization” require vaccine mandates?

NO. This authorized sale and distribution of the vaccine, but did not require anyone’s use of it.

Is President Biden doing all he can, within the powers of the Executive Branch, to protect Americans from the pandemic?

Legal expert, Georgetown Law professor Lawrence Gostin, says YES. “While states have near plenary power to protect the public’s health, the federal government’s powers are limited…(Biden) is acting fully lawfully pursuant to those powers.

1. The president “is using his executive power to order vaccinations for the federal workforce. (this includes members of the Military.)

2. He is using his spending power through Medicaid and Medicare to ensure vaccine mandates in health care settings.

3. And he is using the Occupational Health and Safety Act to mandate vaccinations in all businesses of 100 or more employees. All of these are comfortably within the president’s power.”

Biden could go farther and attempt, by providing financial rewards to states that mandate vaccines, or through the Commerce Claus to limit non-mandated states interstate travel, to extend compliance, but these would most certainly generate extended legal challenges. Federal Law under Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disability Act also require vaccine exemptions for religious and medical reasons be in place. (Nationally, less than 1% have claimed these exemptions.)

As for the states, it’s a messy affair. While Texas Governor Abbott grandstands, the federal District Court in Texas in Bridges et al v. Houston Methodist Hospital refused relief for any of the 117 employees suspended and threatened with termination if they refused to get vaccinated. The decision read: plaintiffs “can freely choose to accept or refuse a COVID-19 vaccine; however, if [they] refuse, [they] will simply need to work somewhere else…Every employment includes limits on the worker’s behavior in exchange for his remuneration. This is all part of the bargain.”

In another recent case, US Court of Appeals for the Seventh Circuit in Indiana, and the Supreme Court in an appeal, denied relief to eight Indiana University students barred from attendance because they refused to comply with mandated vaccination. Students had chosen not to apply to the university for medical and religious exemption, which if granted would permit attendance if they wore masks.

States nationwide generally require entering students to have proof of up to date vaccines to prevent 11 childhood diseases.

Over a century ago, the fight over vaccines was no less heated than it is today. A New York Times editorial at the time of the Jacobson 1904 decision, tagged the dispute as  “a conflict between intelligence and ignorance, civilization and barbarism”

On the “intelligence” side, Nearly 60 top medical organizations released a joint statement on July 22nd in support of mandated vaccines for all health care and long-term care workers as a “logical fulfillment of the ethical commitment” to patients.


5 Responses to “The Legality of Vaccine Mandates – A 7 Minute Summary.”

  1. Judy Doan
    September 30th, 2021 @ 12:43 pm

    What about the question that should come first–is the shot (it’s not a vaccine) safe? Per the VAERS website site, with more than 15,000 deaths reported, it IS NOT SAFE.

  2. Charles Fahey
    October 1st, 2021 @ 9:46 am

    Thanks once again. Excellent material.

  3. Mike Magee
    October 1st, 2021 @ 9:49 am

    Thanks, Chuck! This is part of the 4-part lecture series beginning October 28th. It’s been a journey! Best, Mike

  4. Bob Kamm
    October 1st, 2021 @ 10:16 am

    Thanks Mike, this helps me better understand the complexity of the issue and helps explain the many different opinions people have; I shared it with my family as i know they too are searching for solid information on this issue, Best.

  5. Mike Magee
    October 1st, 2021 @ 10:41 am

    You’re welcome, Bob. Getting governance right, within the confines of the law, is a tricky proposition. Best, Mike

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