What is the Constitutionality President Biden's, Covid-19 vaccination requirement among certain people residing in the United States?
October 1, 2021 | View PDF
That’s a tough question and prone to a rambling answer. Before looking at several points we will pretty much first agree that there may be legitimate, provable exemptions that may be medical or religious. In looking at case law there are numerous Covid-19 related cases that generally deal with a compassionate release from prison where multiple cases of Covid have occurred in prisons. There is a case of a cruise liner requiring proof of vaccination for a very high percentage of its employees and passengers to meet certain regulatory guidelines only to be frustrated by Florida law which went against what the cruise line was trying to follow so as to not lose another year of cruising. The cruise line was successful in gaining injunctive relief.
First to look at an argument for required immunization of certain groups. Consider the required immunization of school children to attend public school. Public school of course is an extension of a governmental entity and accepts payment from governmental agencies. The required immunization of school aged children is not a part of Biden mandates but this is purely an example of required immunization to protect those inoculated and those that come in contact. Under Biden’s mandates consider then companies of more than 100 employees that receive governmental payment because of government contracts (though governmental payment is not a requirement). While I don’t think we are at war with anyone right now, private companies that manufacture the machinery of war are expected to remain healthy and to be able to have adequate staff to produce what is expected and paid for by the government. Those companies under the mandate have both the ability to require vaccination or routine testing requirements. Another part of Biden’s mandates includes the complete vaccination of healthcare providers that receive Medicare and Medicaid. It does not include a provision of routine testing to skirt a vaccination requirement.
The 1905 United States Supreme Court case of Jacobsen v Massachusetts allowed local health authorities to require that all adults receive the smallpox vaccination. This occurred in Cambridge, Massachusetts. Henning Jacobsen was fined $5.00 for refusing a free but required smallpox vaccination. According to an inflation calculator, $5.00 is the approximate equivalent in 2021 of just over $155.00. Justice John Marshall Harlan wrote in the majority opinion, “It is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.” General police powers given to the states is there to require such things to protect the public.
With over 675,000 deaths in the United States alone there is a compelling public interest to take reasonable steps to protect the citizenry, especially the more vulnerable. Aside from the deaths there are mental health effects, higher health care costs, strains on funeral homes, economic impact from the illnesses, time away from work and the deaths of workers. It has caused some children to have only one parent or to become orphans.
On the flip side, individuals argue that it is their body and that they should be able to refuse such a personal and physical invasion. Some argue Constitutionally that the refusal is protected under the First Amendment as a freedom of expression.
Some states are requiring a vaccine passport. In response to Biden’s mandates, Gov. Kay Ivey said the following, “Once again, President Biden has missed the mark. His outrageous, overreaching mandates will no doubt be challenged in the courts. Placing more burdens on both employers and employees during a pandemic with the rising inflation rates and lingering labor shortages is totally unacceptable.”
“Alabamians have stepped up by rolling up their sleeves to get the covid-19 vaccine, increasing our doses administered significantly in recent weeks. We have done so without mandates from Washington D.C. or Montgomery. I’ve made it abundantly clear: I support the science and encourage folks taking the vaccine. However, I am absolutely against a government mandate on the vaccine, which is why I signed the vaccine passport ban into law here in Alabama. This is not the role of the government.”
In 1922, a Texas case, Zucht v King , was also related to smallpox but in that it was required that school children have the smallpox vaccination. It was challenged by Rosalyn Zucht who said it violated her 14th Amendment due process rights. Again the United States Supreme Court stated that police powers of the state are available to protect the public.
A couple of universities that have mandated vaccines have been challenged or are in the process of being challenged. Thus far courts have ruled that Constitutional rights were not violated and have upheld the rules of the universities. Finally, a couple of other things that may be used by the Federal government is to use its spending power to “encourage through reward” states to mandate vaccinations or even to use the interstate commerce clause since people travel between states. The commerce clause was used in the famous 1960’s Ollie’s BBQ case where Federal segregation was challenged by the McClung owners from Birmingham but lost at the United States Supreme Court because products used in the restaurant were subject to moving between states to get there and it was ruled that the Federal government therefore had power over such places.
We will see what happens in the courts.
As always if you do not have an attorney, ask a trusted friend or family member or contact the Alabama State Bar, Lawyer Referral service.
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