{"id":3499,"date":"2021-02-16T00:19:53","date_gmt":"2021-02-16T00:19:53","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3499"},"modified":"2021-02-16T00:19:53","modified_gmt":"2021-02-16T00:19:53","slug":"no-more-zoom-law-school-the-constitutionality-of-mandatory-vaccine-laws","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2021\/02\/16\/no-more-zoom-law-school-the-constitutionality-of-mandatory-vaccine-laws\/","title":{"rendered":"No More Zoom Law School?: The Constitutionality of Mandatory Vaccine Laws"},"content":{"rendered":"\n

(Source<\/em><\/a>)<\/p>\n\n\n\n

\u201cWe\u2019re\nvery close to [the COVID-19] vaccine<\/em><\/a>,\u201d former President Trump stated in\na press brief on September 16, 2020, suggesting that a vaccine could be ready\nby election day. Then-President-elect Biden responded that he did not\ntrust the President<\/em><\/a> to determine when a vaccine would be ready for the\npublic. On November 9, 2020, Pfizer, as part of Operation\nWarp Speed<\/em><\/a>, announced\nearly results from its COVID-19 vaccine trial<\/em><\/a> that suggest that the\ntheir vaccine was more than\n90 percent effective<\/em><\/a>. Since the election, President Biden has been more\naggressive in ensuring that more vaccines are available by pledging to purchase\n200 million addition vaccine doses<\/em><\/a>. Assuming that the vaccine can be\ndelivered safely and effectively, can the state and federal governments require\nsuch vaccine? <\/p>\n\n\n\n

State Government<\/strong><\/p>\n\n\n\n

The Fourteenth\nAmendment<\/em><\/a> prohibits any state from depriving \u201cany person of life,\nliberty, or property without due process<\/em><\/a> of\nlaw.\u201d However, the liberty protected by the Constitution is not absolute<\/em><\/a>.\nThe Supreme Court has recognized that a state can exercise its police power by enacting\nreasonable regulations to protect public health and safety<\/em><\/a>. <\/p>\n\n\n\n

The Supreme Court first addressed the constitutionality of\nmandatory vaccine laws in 1905. In Jacobson v.\nMassachusetts<\/em><\/a>, the Court upheld a Massachusetts law that required its\ncitizens to be vaccinated or otherwise be fined in response to a smallpox\noutbreak. The Court found that the law was a legitimate exercise of\nMassachusetts\u2019s police\npower<\/em><\/a> as compulsory vaccination was a reasonable means of protecting\npublic health and safety. In response to Jacobson\u2019s argument that the smallpox\nvaccine is ineffective or, alternatively, harmful, the Court added that there\nis a presumption that the state legislature has weighed the various risks and\nenacted reasonable regulations. The Court will step in only if the statute\nenacted under a state\u2019s police power bears no real or substantial relation to\npublic health and safety. <\/p>\n\n\n\n

In 1922, the Supreme Court reaffirmed the constitutionality\nof mandatory vaccine laws in Zucht v. King<\/em><\/a>.\nSan Antonio enacted ordinances that prohibited children from attending schools\nwithout being vaccinated. The Court, relying on Jacobson<\/em>, found these\nordinances constitutional as a legitimate exercise of Texas\u2019s police power. <\/p>\n\n\n\n

The Supreme Court has\nyet to rule on the constitutionality of religious exemptions<\/em><\/a> to\nmandatory vaccination. Although it is possible some mandatory vaccine laws\ncould be challenged on other grounds, such as the\nFirst Amendment<\/em><\/a>, it has not been an issue, as forty-eight\nstates allow for religious exemptions<\/em><\/a>. <\/p>\n\n\n\n

Therefore, under Jacobson <\/em>and Zucht<\/em>, states\ncan mandate COVID-19 vaccines as a legitimate exercise of the state\u2019s police\npower. As COVID-19 infections continue to rise, states may not allow for\nreligious exemptions in mandating COVID-19 vaccines. Therefore, individuals may\nchallenge constitutionality of such laws because they would infringe on First Amendment\nrights. <\/p>\n\n\n\n

In addition, states are not required by the Constitution to\nmandate COVID-19 vaccines; rather, the Constitution allows states to do so. It\nis possible that not all states will mandate COVID-19 vaccines. As a result,\nthe federal government may wish to intervene and mandate COVID-19 vaccines throughout\nthe country. Does the Constitution grant the federal government to mandate\nCOVID-19 vaccines? <\/p>\n\n\n\n

Federal Government<\/strong><\/p>\n\n\n\n

As a form of limited government, the federal government may\nexercise its power only\nif it is authorized by the Constitution<\/em><\/a>. The federal government, unlike\nstates, does\nnot have a general police power<\/em><\/a>. However, since the Constitution\u2019s ratification\nin 1788<\/em><\/a>, the scope of the federal government\u2019s power\nhas drastically expanded<\/em><\/a>. <\/p>\n\n\n\n

It seems likely that the federal government may not become involved, as individual states can and will likely mandate COVID-19 vaccines. Nonetheless, President Biden has claimed that the federal government has the legal authority to impose a nationwide mask mandate<\/em><\/a> (and, indeed, already imposed a mask mandate on federal property<\/em><\/a>), suggesting that if the states\u2019 responses to COVID-19 do not meet the expectation of the federal government, the federal government would step in. Likewise, if the states do not require COVID-19 vaccines, it seems plausible that the federal government could mandate them. However, even if the federal government wanted to pass a mandatory vaccine law, it would likely have to overcome litigation challenging the constitutionality of such law, and it is unclear whether it would be upheld. <\/p>\n\n\n\n

The federal government\u2019s power to\nenact mandatory vaccine laws may be authorized under the Commerce Clause. The Constitution\ngives Congress the power to \u201cregulate commerce \u2026\namong the several states<\/em><\/a>.\u201d In United States\nv. Lopez<\/em><\/a>, the Supreme Court found that there are three broad categories\nof activity that Congress is authorized to regulate under the Commerce Clause. <\/p>\n\n\n\n

First, Congress may regulate the\n\u201cuse of the channels of interstate commerce,\u201d under Heart of\nAtlanta Motel, Inc. v. United States<\/em><\/a>. In Heart of Atlanta Motel<\/em>,\nthe Court upheld the federal law prohibiting discrimination in hotels and\nrestaurants because Congress may \u201ckeep the\nchannels of interstate commerce from immoral and injurious uses<\/em><\/a>.\u201d Channels\nof interstate commerce include\nconduits such as highways, airspace, and interstate transportation<\/em><\/a>. Second,\nCongress may also regulate the instrumentalities of interstate commerce, allowing\nCongress to regulate persons and things in interstate commerce <\/em><\/a>. Finally,\nCongress may\nregulate those activities \u201chaving a substantial relation to interstate commerce<\/em><\/a>.\u201d\n<\/p>\n\n\n\n

However, it is unclear exactly\nwhat activities would have a substantial relation to interstate commerce. The\nCourt in Lopez<\/em> held that the Gun-Free\nSchool Zones Act of 1990<\/em><\/a> exceeded Congress\u2019s authority under the\nCommerce Clause because possession of a firearm does not have \u201cany concrete\ntie to interstate commerce<\/em><\/a>.\u201d The Court acknowledged that there may be\nsome effect on interstate commerce as costs of violent crime are substantial\nand the presence of guns poses a threat the learning process in schools. Yet,\nthe Court concluded that to hold that these costs would have a substantial\nrelation to interstate commerce would be to convert Congress\u2019s Commerce Clause\nauthority to a general police power, which the federal government does not\nhave. On the other hand, in Gonzales v. Raich<\/em><\/a>,\nthe Court upheld a federal law that regulated cultivation and possession of\nmarijuana, concluding that cultivation and possession of marijuana would have a\nsubstantial effect on interstate commerce. <\/p>\n\n\n\n

A federal law mandating vaccination\nwould likely be authorized under the Commerce Clause. To be a legitimate\nexercise of Congress\u2019s Commerce Clause power, the federal law mandating vaccination\nmust fit under one of the three categories of activities described in Lopez<\/em>.\nUnless the law is tailored to interstate travel, it seems unlikely that a\nmandatory vaccine law would fit the first two categories. A general vaccine\nmandate is not regulating channels or instrumentalities of interstate commerce\neven if individuals travel across state lines. However, a general vaccine\nmandate may be a legitimate exercise of Congress\u2019s Commerce Clause power because\nthe mandate would substantially affect interstate commerce. Passenger\nrevenue for airlines dropped 55%<\/em><\/a> as a result of COVID-19, and millions\nof jobs in travel and tourism were lost<\/em><\/a>. Economists\npredict that a vaccine would significantly impact GDP growth<\/em><\/a>. Whereas\nin Lopez<\/em> the costs of violent crime would require \u201cinference upon\ninference<\/em><\/a>\u201d to connect the costs of violent crime and the effects on interstate\ncommerce, mandatory vaccination would have a direct impact on interstate\ncommerce.<\/p>\n\n\n\n

However, the Court may rely on National\nFederation of Independent Business v. Sebelius<\/em><\/a>, which held that\nCongress\u2019s Commerce Clause power does not authorize regulation of economic\ninactivity, to disallow a federal mandatory vaccine law. In Sebelius<\/em>,\nthe Court found that the individual mandate, which required individuals to have\nhealth insurance or pay a fine, exceeded Congress\u2019s authority under the\nCommerce Clause. The Commerce Clause allows Congress to regulate activity, but\ndoes not allow Congress to compel \u201cindividuals\nto <\/em>become active in commerce by purchasing a product, on the ground that\ntheir failure to do so affects interstate commerce<\/em>.<\/a>\u201d Likewise, the\nCourt may find that a mandatory vaccine, like the individual mandate, is\nregulating inactivity because the failure to be vaccinated is affecting\ninterstate commerce. <\/p>\n\n\n\n

Nonetheless, the Court in Sebelius<\/em>\nupheld the individual mandate as a valid exercise of Congress\u2019s taxing\npower<\/em><\/a>. Therefore, even in the case that the Court finds that the\nmandatory vaccination law would exceed Congress\u2019s Commerce Clause, the Court\ncould rely on Sebelius<\/em> and find that the fine for those who do not\nbecome vaccinated is a tax and within the scope of Congress\u2019s taxing power. <\/p>\n\n\n\n

Conclusion <\/strong><\/p>\n\n\n\n

Litigation will likely ensue as a COVID-19 vaccine becomes more widely available.Unlike other vaccines<\/em><\/a>, only 50% of Americans are willing to be vaccinated<\/em><\/a> against COVID-19. Because the vaccine development process typically takes more than a decade<\/em><\/a>, many people are justifiably worried about the safety of COVID-19 vaccines. Although the defendant\u2019s argument in Jacobson<\/em> about the ineffectiveness of the smallpox vaccine did not persuade the Court, the unique nature of the COVID-19 vaccine\u2019s hasty development<\/em><\/a> may require the Court to revisit Jacobson. <\/em> <\/p>\n\n\n\n

\"\"<\/figure>
\n

About the Author: Justin Park is a J.D candidate in the\nclass of 2022 at Cornell Law School. He graduated from Washington and Lee\nUniversity in 2019. He is interested in issues of litigation and tax law. He is\nan associate for the Cornell Journal of Law and Public Policy and a member of\nAsian Pacific American Law Students Association.<\/p>\n<\/div><\/div>\n\n\n\n

Suggested Citation: Justin Park, No More Zoom Law School?: The Constitutionality of Mandatory Vaccine Laws<\/em>, Cornell J.L. & Pub. Pol\u2019y: The Issue Spotter (Feb. 15, 2021), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/no-more-zoom-law-school-the-constitutionality-of-mandatory-vaccine-laws\/<\/em><\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

(Source) \u201cWe\u2019re very close to [the COVID-19] vaccine,\u201d former President Trump stated in a press brief on September 16, 2020, suggesting that a vaccine could be ready by election day. Then-President-elect Biden responded that he did not trust the President to determine when a vaccine would be ready for the public. On November 9, 2020,…<\/p>\n","protected":false},"author":1,"featured_media":3500,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,21,25,27,28],"tags":[369,411,879,984,1620],"class_list":["post-3499","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-spotters","category-policycontributor-blogs","category-recent-stories","category-student-blogs","tag-constitutional-law","tag-covid-19","tag-jlpp","tag-mandatory","tag-vaccines"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3499","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=3499"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/3499\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=3499"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=3499"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=3499"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}