Biden’s Covid vaccine mandate plan is constitutional, whatever his GOP critics say

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President Joe Biden was not even finished announcing the details of his new plan to reduce the spread of Covid-19 on Thursday when criticism started pouring in. Using executive orders and agency guidelines, he mandated full immunizations for all federal employees, federal contractors, and workers in health facilities funded by Medicaid and Medicare. He also asked the Ministry of Labor to write an emergency rule requiring private companies with 100 or more employees to ensure their workers are fully vaccinated or take weekly Covid tests.

While there do not appear to be constitutional grounds for overturning the Bidens rule for private companies, there could be other legal challenges.

The federalist called the mandates fascist. Arizona Gov. Doug Ducey, South Dakota Gov. Kristi Noem, and the Republican National Committee have vowed to continue the administration. And many critics everywhere have called the president’s vaccine rules unconstitutional. The backlash is likely only to increase because Dr Anthony Fauci recently said he supports a vaccination mandate for air travel.

The ferocity of the outrage suggests that there is considerable uncertainty about the constitutionality of the Bidens plan, or at least thorny and complicated legal issues based on previous Supreme Court competitors. But in fact, the constitutionality of what Biden intends to do is fairly straightforward as long as the courts follow a set precedent.

Federal courts have consistently rejected constitutional challenges to government vaccine mandates, as long as they do not discriminate against a demographic group. The Supreme Court has done this since Jacobson v. Massachusetts in 1905, when a smallpox epidemic swept through Bay State. To stem the disease, the Board of Health in Cambridge, Massachusetts, passed an order criminalizing with a fine of $ 5 the refusal of anyone over the age of 21 to be vaccinated against the smallpox virus.

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Henning Jacobson, then pastor of the Augustana Swedish Evangelical Lutheran Church in Cambridge and an immigrant to the United States, refused on the grounds that he had been made ill from a vaccination as a child. He also argued that the vaccine mandate amounted to enforcing paganism: can the free citizen of Massachusetts, who is not yet a pagan or an idolater, can he be forced to undergo this elevation and participate in this new form of worship? not resuscitated from the sacred cow?

After being criminally prosecuted, Jacobson appealed his case to the Supreme Court, arguing that the vaccination warrant violated his due process right to bodily integrity. In other words, the pastor argued that the forced vaccination deprived him of his constitutional right to make autonomous decisions about his own body. In a 7-2 ruling that remains the law today, the High Court dismissed this challenge.

As the court explained, Americans do not have the constitutional right to harm their fellow citizens by refusing a vaccine and thus serve as a vector of disease. Justice John Marshall Harlan, who wrote the opinion, explained the constitutionally guaranteed freedom. . . does not imply an absolute right for each person to be, at all times and in all circumstances, entirely free from all constraint. . . . On no other basis could organized society exist with the safety of its members.

Harlan espoused the social compact theory of public health regulation. He noted that the Massachusetts Constitution considers as fundamental the social pact whereby the whole people agree with every citizen, and every citizen with the whole people, that all will be governed by certain laws for the common good.

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Harlan, however, did not stop there. Jacobson has stood the test of time because he also explicitly recognized that the government’s power to impose vaccination is constitutionally prohibited from forcing a person to take a vaccine that will harm that person’s health.

The Bidens plan adheres to these precepts. Unlike the board of health law at issue in Jacobson, not only does the grand proposal by Bidens’ private employer not criminalize vaccine refusal, it does not even require anyone to submit to a vaccine. Employees can take a regular Covid test instead. Proposals that apply to federal employees, federal contractors and healthcare workers must also include a medical exception to the vaccine to satisfy Jacobson, which should largely be part of the rule when written.

Compulsory vaccination laws have also withstood constitutional challenges in lower federal courts based on the First Amendment’s free exercise clause guaranteeing freedom of religion. Although Justice Antonin Scalia did not address vaccines directly, he wrote for the majority in Employment Division v. Smith of 1990 that the clause does not exempt an individual from complying with a law that applies to the general population and does not directly distinguish an individual. group. The emergency testing or vaccination rule for private companies meets this standard.

However, Congress was not satisfied with the Smith decision when it was rendered and, in response, passed the Restoration of Religious Freedom Act in 1993. The law requires the federal government to have a compelling interest to enact a law that infringes on religious freedom, restricting the making of laws more than in many other areas. Federal agency rules that significantly hamper religious practice must also be the means to achieve the political goal (here stopping the spread of disease) that is least binding on religious adherents.

The test or vaccine warrant appears to satisfy the law as routine Covid testing is the least restrictive way to advance federal governments that impose the public health interest. And Bidens’ press secretary announced last week that the vaccination mandate for federal employees will include medical and religious exemptions, so that it will not provoke any legitimate challenge to the law.

So while there does not appear to be any constitutional grounds for overturning the Bidens rule for private companies, there could be other legal challenges. As noted jurists have noted, there is no doubt that the emergency rule which has yet to be drafted likely raises new statutory and regulatory legal questions regarding laws passed by Congress or rules adopted by federal agencies.

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The Department of Labor’s Occupational Safety and Health Administration is only allowed by law to adopt a temporary emergency rule if exposure to the virus constitutes a serious danger and its test or control rule. vaccine is necessary to protect employees from such danger. I agree with other legal scholars that an OSHA testing or vaccine rule can cross even this very high bar as long as the rule is tightly suited to workplaces where transmission of Covid to unvaccinated employees. is very likely, only applies to unvaccinated employees as they pose the greatest risk to others, and includes a testing option.

Of course, a single ruling from a maverick court could upend not only critical workplace safety laws, but also the long-standing social compact theory of constitutional public health law that limits your freedom. to swing your arms where my nose begins. This could potentially put all of our health at the mercy of fellow citizens who claim their freedom interests are being violated by governments requiring them to produce a negative weekly Covid-19 test or get vaccinated.

Jennifer D. Oliva is Associate Dean for Faculty Research and Development, Professor of Law, and Director of the Center for Health and Pharmaceutical Law at Seton Hall University School of Law.

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