In the early 1900s, we created a smallpox vaccine that prevented both transmission and infection. In Cambridge, Massachusetts, the Board of Health adopted a regulation forcing free vaccinations of its residents. If they did not want to take the vaccine, they had to pay a one-time fine of $5.00. (Roughly $120.00 today). A man challenged the regulation, in part because he had bad experiences with prior vaccines.
While his case was pending, he continued traveling, public speaking, and living life normally. The court ruled against him, and he had to pay the $5.00 fine: Jacobson v. Massachusetts, 197 U.S. 11 (1905).
The facts under Jacobson are like what we have with Covid because we are in a pandemic, and we have a ‘vaccine’ that various levels of government are trying to mandate.
However, today’s vaccine mandates on the state level go much further than Jacobson. For starters, we see restrictions on conducting everyday life like travel, eating at restaurants, working, and shopping unless vaccinated. Second, the fine for not taking the vaccine is not a relatively inexpensive, one-time charge. Instead, it is invasive and expensive testing that is ongoing.
The courts are beginning to hear challenges to state vaccine mandates. We hope the courts recognize the differences between a one-time fine and being ostracized from society. One such case is based in Oregon and is being litigated in part by the Freedom Foundation. In Williams v. Brown (Case Number 6:2021cv01332), The challengers are either working in the medical field or state government. They all have natural immunity and antibodies. More plaintiffs are joining the action every day. They are challenging the state vaccine mandate because there is no natural immunity exemption.
The Biden Administration’s proposed vaccine mandate on the federal level is almost guaranteed to be unconstitutional.
First, the separation of powers prevents the executive branch from creating legislation. Here, Congress has not passed any legislation mandating vaccines. The Biden Administration uses the Occupational Safety and Health Administration (OSHA) to say that any business with at least 100 workers must force employees to get vaccinated or produce weekly test results showing they are virus-free. If a company refuses, the fines reach up to $13,600 per violation. OSHA will attempt to use its “emergency temporary standard” (ETS) to fast-track the rulemaking process. Most of OSHA’s emergency rules have been struck down by the court. Of the ten total rules under ETS ever, the Courts overturned four and partially blocked the fifth.
Second, even if the OSHA rule survives legal challenges (a BIG “IF”), we have a commerce clause problem. The commerce clause states that states have general police powers for health and safety, not the federal government. Recently, the Supreme Court ruled that health insurance mandates are NOT covered under the commerce clause. A vaccine requirement is arguably further removed than a health insurance mandate, and it affects employees.
Third, the government is trying to force businesses to do their dirty work. It is unconstitutional to make companies force mandates on individuals that the government can’t do itself.
So, are vaccine mandates constitutional?
It depends on who is telling you to take them, and under what authority.
Will businesses go ahead and force their employees to take the vaccine anyway, and before the court hears OSHA and Jacobson challenges?
Now, that is a different question, altogether.
Abby Moscatel, Esq. is a constitutional law attorney practicing in Montana, California, and Federal Court. Her e-mail is Amoscatel@blacktaillaw.com . This e-mail is not intended as attorney-client communication or legal advice.