“We’re very close to [the COVID-19] vaccine,” 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, Pfizer, as part of Operation Warp Speed, announced early results from its COVID-19 vaccine trial that suggest that the their vaccine was more than 90 percent effective. Since the election, President Biden has been more aggressive in ensuring that more vaccines are available by pledging to purchase 200 million addition vaccine doses. Assuming that the vaccine can be delivered safely and effectively, can the state and federal governments require such vaccine?
The Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property without due process of law.” However, the liberty protected by the Constitution is not absolute. The Supreme Court has recognized that a state can exercise its police power by enacting reasonable regulations to protect public health and safety.
The Supreme Court first addressed the constitutionality of mandatory vaccine laws in 1905. In Jacobson v. Massachusetts, the Court upheld a Massachusetts law that required its citizens to be vaccinated or otherwise be fined in response to a smallpox outbreak. The Court found that the law was a legitimate exercise of Massachusetts’s police power as compulsory vaccination was a reasonable means of protecting public health and safety. In response to Jacobson’s argument that the smallpox vaccine is ineffective or, alternatively, harmful, the Court added that there is a presumption that the state legislature has weighed the various risks and enacted reasonable regulations. The Court will step in only if the statute enacted under a state’s police power bears no real or substantial relation to public health and safety.
In 1922, the Supreme Court reaffirmed the constitutionality of mandatory vaccine laws in Zucht v. King. San Antonio enacted ordinances that prohibited children from attending schools without being vaccinated. The Court, relying on Jacobson, found these ordinances constitutional as a legitimate exercise of Texas’s police power.
The Supreme Court has yet to rule on the constitutionality of religious exemptions to mandatory vaccination. Although it is possible some mandatory vaccine laws could be challenged on other grounds, such as the First Amendment, it has not been an issue, as forty-eight states allow for religious exemptions.
Therefore, under Jacobson and Zucht, states can mandate COVID-19 vaccines as a legitimate exercise of the state’s police power. As COVID-19 infections continue to rise, states may not allow for religious exemptions in mandating COVID-19 vaccines. Therefore, individuals may challenge constitutionality of such laws because they would infringe on First Amendment rights.
In addition, states are not required by the Constitution to mandate COVID-19 vaccines; rather, the Constitution allows states to do so. It is possible that not all states will mandate COVID-19 vaccines. As a result, the federal government may wish to intervene and mandate COVID-19 vaccines throughout the country. Does the Constitution grant the federal government to mandate COVID-19 vaccines?
As a form of limited government, the federal government may exercise its power only if it is authorized by the Constitution. The federal government, unlike states, does not have a general police power. However, since the Constitution’s ratification in 1788, the scope of the federal government’s power has drastically expanded.
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 (and, indeed, already imposed a mask mandate on federal property), suggesting that if the states’ 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.
The federal government’s power to enact mandatory vaccine laws may be authorized under the Commerce Clause. The Constitution gives Congress the power to “regulate commerce … among the several states.” In United States v. Lopez, the Supreme Court found that there are three broad categories of activity that Congress is authorized to regulate under the Commerce Clause.
First, Congress may regulate the “use of the channels of interstate commerce,” under Heart of Atlanta Motel, Inc. v. United States. In Heart of Atlanta Motel, the Court upheld the federal law prohibiting discrimination in hotels and restaurants because Congress may “keep the channels of interstate commerce from immoral and injurious uses.” Channels of interstate commerce include conduits such as highways, airspace, and interstate transportation. Second, Congress may also regulate the instrumentalities of interstate commerce, allowing Congress to regulate persons and things in interstate commerce . Finally, Congress may regulate those activities “having a substantial relation to interstate commerce.”
However, it is unclear exactly what activities would have a substantial relation to interstate commerce. The Court in Lopez held that the Gun-Free School Zones Act of 1990 exceeded Congress’s authority under the Commerce Clause because possession of a firearm does not have “any concrete tie to interstate commerce.” The Court acknowledged that there may be some effect on interstate commerce as costs of violent crime are substantial and the presence of guns poses a threat the learning process in schools. Yet, the Court concluded that to hold that these costs would have a substantial relation to interstate commerce would be to convert Congress’s Commerce Clause authority to a general police power, which the federal government does not have. On the other hand, in Gonzales v. Raich, the Court upheld a federal law that regulated cultivation and possession of marijuana, concluding that cultivation and possession of marijuana would have a substantial effect on interstate commerce.
A federal law mandating vaccination would likely be authorized under the Commerce Clause. To be a legitimate exercise of Congress’s Commerce Clause power, the federal law mandating vaccination must fit under one of the three categories of activities described in Lopez. Unless the law is tailored to interstate travel, it seems unlikely that a mandatory vaccine law would fit the first two categories. A general vaccine mandate is not regulating channels or instrumentalities of interstate commerce even if individuals travel across state lines. However, a general vaccine mandate may be a legitimate exercise of Congress’s Commerce Clause power because the mandate would substantially affect interstate commerce. Passenger revenue for airlines dropped 55% as a result of COVID-19, and millions of jobs in travel and tourism were lost. Economists predict that a vaccine would significantly impact GDP growth. Whereas in Lopez the costs of violent crime would require “inference upon inference” to connect the costs of violent crime and the effects on interstate commerce, mandatory vaccination would have a direct impact on interstate commerce.
However, the Court may rely on National Federation of Independent Business v. Sebelius, which held that Congress’s Commerce Clause power does not authorize regulation of economic inactivity, to disallow a federal mandatory vaccine law. In Sebelius, the Court found that the individual mandate, which required individuals to have health insurance or pay a fine, exceeded Congress’s authority under the Commerce Clause. The Commerce Clause allows Congress to regulate activity, but does not allow Congress to compel “individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.” Likewise, the Court may find that a mandatory vaccine, like the individual mandate, is regulating inactivity because the failure to be vaccinated is affecting interstate commerce.
Nonetheless, the Court in Sebelius upheld the individual mandate as a valid exercise of Congress’s taxing power. Therefore, even in the case that the Court finds that the mandatory vaccination law would exceed Congress’s Commerce Clause, the Court could rely on Sebelius and find that the fine for those who do not become vaccinated is a tax and within the scope of Congress’s taxing power.
Litigation will likely ensue as a COVID-19 vaccine becomes more widely available.Unlike other vaccines, only 50% of Americans are willing to be vaccinated against COVID-19. Because the vaccine development process typically takes more than a decade, many people are justifiably worried about the safety of COVID-19 vaccines. Although the defendant’s argument in Jacobson about the ineffectiveness of the smallpox vaccine did not persuade the Court, the unique nature of the COVID-19 vaccine’s hasty development may require the Court to revisit Jacobson.
About the Author: Justin Park is a J.D candidate in the class of 2022 at Cornell Law School. He graduated from Washington and Lee University in 2019. He is interested in issues of litigation and tax law. He is an associate for the Cornell Journal of Law and Public Policy and a member of Asian Pacific American Law Students Association.
Suggested Citation: Justin Park, No More Zoom Law School?: The Constitutionality of Mandatory Vaccine Laws, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Feb. 15, 2021), http://jlpp.org/blogzine/no-more-zoom-law-school-the-constitutionality-of-mandatory-vaccine-laws/.