Would a federal vaccine mandate violate the rights of the states, or would it be within the scope of the federal government?
To address part of the question, here is a note from the Congressional Research Service, dated 2021-04-02:
From the conclusion:
As discussed above, whether the federal government has existing statutory authority to mandate vaccination in the context of COVID-19 is subject to debate. Thus, inasmuch as Congress determines that a federal vaccination mandate may be necessary to address the pandemic, legislative action may be required to implement such a mandate.
A couple points of context:
- The document linked above examines the question if the Executive branch has already existing authority.
- It does not address the deeper constitutional question of Congressional authority vs that of States.
- While the CRS note obviously implies that Congress has the authority to legislate here, in my opinion, that's just a routine presumption at this stage of the process -- giving oneself the benefit of the doubt. The possibility of a legal challenge should be assumed.
There is nothing in the constitution that says they can or can't mandate vaccinations and in fact there is already a supreme court ruling on this issue. In 1904 the court heard a case about the state of Massachusetts having a law requiring residents to be vaccinated against smallpox or face a $5 fine. In 1905 they ruled it was constitutional and upheld the law. It appears to have been decided in a 7-2 ruling.
In the end if they did something like this it would be challenged and we would get an answer from the supreme court.
In 1905 the Supreme Court addressed mandatory vaccinations in regard to smallpox in Jacobson v Massachusetts . There the Court ruled that the police power of a state absolutely included reasonable regulations established by legislature to protect public health and safety . Such regulations do not violate the 14th Amendment right to liberty because they fall within the many restraints to which every person is necessarily subjected for the common good . Real liberty for all cannot exist if each individual is allowed to act without regard to the injury that his or her actions might cause others; liberty is constrained by law. The Court went on to determine in Jacobson that a state may require vaccination if the board of health deems it necessary for public health or safety .
A Massachusetts law allowed cities to require residents to be vaccinated against smallpox. Cambridge adopted such an ordinance, with some exceptions. Jacobson refused to comply with the requirement and was fined five dollars.
The Court held that the law was a legitimate exercise of the state's police power to protect the public health and safety of its citizens. Local boards of health determined when mandatory vaccinations were needed, thus making the requirement neither unreasonable nor arbitrarily imposed.
There is also the fact that many states have mandated vaccine programs that impact younger children and their ability to go to school or day care.
Yes, via the power to regulate interstate commerce.
The coronavirus and its spread affect interstate commerce, and the US Congress has the power to regulate interstate commerce under the Commerce Clause of the US Constitution. This would allow them to mandate a nationwide vaccination campaign, since vaccinations would prevent the interstate spread of the coronavirus through interstate commerce, and coronavirus lockdowns also affect interstate commerce (and thus any efforts to fight the coronavirus should also be covered).
While this is pending before the courts, it's worth noting the moving parts here
The Federal government has little direct emergency power over a health crisis
Many people are aware about Federal agencies like the Food and Drug Administration (FDA; regulates drugs) and the Centers for Disease Control(CDC; studies and helps prevent the spread of diseases). It sounds like a vaccine mandate would fit in with that, but not even the CDC lists broad regulatory power (the best they can muster is mandating face masks for air travel, which is squarely in their domain). You'll note that the CDC issues guidance for most everything else, and many people listen to said guidance voluntarily. The FDA can pull a drug or vaccine from the market, not force people to take it. Remember, the Federal mandate allows the Federal government to regulate interstate commerce (the Commerce Clause, which, arguably, can be interpreted broadly).
All 50 states have broad laws governing public health emergencies, and virtually all of them have been taking various emergency actions in that vein (lockdowns, masks, vaccines, etc.). It's also worth noting that most states require the measles, mumps and rubella vaccines to attend public school. No Federal agency (prior to Nov 2021) has ever mandated that citizens must take a vaccine or drug (or even be tested for a certain disease). The CDC can mandate tests at ports of entry only.
The current proposed Federal rule
- comes from Occupational Safety and Health Administration(OSHA)
- Is an "emergency" rule (that is apparently supposed to go into effect 60 days from issuance)
- only affects companies with 100 or more employees
As of this writing, the Fifth Circuit Court of Appeals has placed said rule on hold. The arguments against it are
It usurps state rule-making in this regard
It strains the powers of OSHA's emergency rule-making
More specifically, the plaintiffs argue that "COVID-19 is not a toxic substance or agent," adding that "OSHA cannot attempt to shoehorn this disease into the phrase 'new hazards.'" That phrase, they say, should be understood in context to exclude airborne viruses: "Because Congress expressly allowed for an ETS to be issued for 'substances or agents determined to be toxic or physically harmful,' the catch-all phrase to encompass other hazards must be read in light of, and limited to, items similar to those that come before it."
The rule has some political timing for when it goes into effect, despite being a supposed emergency rule
The plaintiffs' brief says OSHA's claim that it is responding to a "grave danger" justifying an emergency standard is belied by the timing of the ETS. The regulation was published nearly two years after the beginning of the pandemic, nearly a year after the Food and Drug Administration (FDA) first approved COVID-19 vaccines for "emergency use," and more than two months after the FDA gave the Pfizer vaccine its full approval. "The extended timeframe for the ETS undermines any claim of exigence," the plaintiffs say. "And the real kicker is the same day the ETS was released, November 4, the White House also announced it was delaying its federal contractor vaccination mandate from December 8 to January 4, again undermining its assertion of exigency." That is also the deadline for private employers to start complying with the ETS published on Friday. The plaintiffs suggest that "truly 'grave dangers' do not wait to spread until after the holidays."
Previous attempts at emergency rule-making by the CDC in the area of evictions did not go well at SCOTUS
“The C.D.C. has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination,” the opinion said. “It strains credulity to believe that this statute grants the C.D.C. the sweeping authority that it asserts.”
This new rule may not past the muster of courts, either.
There is nothing in the Constitution that gives the US government any authority to directly mandate vaccinations.
However, there are things that they may be able to do to put pressure on those who do not with to receive vaccinations. For example, the Secretary of State could change the rules on the issuing of a passport to deny one to those who have not been vaccinated, if he wished to do so.
Mandatory medical treatment is forbidden by the deontological code. Although legally it is not binding for the government practically it could trigger a wave of appeals in any possible legal branch.
Another question is whether someone would really want to do anything such. After all the principle of required consent was proposed by the US after they saw what happened in the Nazist concentration camps. Could really the country that created the Nuremberg Code Revert to a Nazist mindset?