Vaccine Mandates are Popular and (Often) Legal

Despite a rising groundswell of support, the obvious solution to our crisis has not been implemented.

WaPo’s Ruth Marcus has had it up to here with jerks endangering the public health and impinging on her lifestyle and declares, “Require the vaccine. It’s time to stop coddling the reckless.

Those of us who have behaved responsibly — wearing masks and, since the vaccines became available, getting our shots — cannot be held hostage by those who can’t be bothered to do the same, or who are too deluded by misinformation to understand what is so clearly in their own interest.

The more inconvenient we make life for the unvaccinated, the better our own lives will be. More important, the fewer who will needlessly die.

[…]

It’s reasonable, it’s fair, and it’s legal to step up the pressure on the reckless noncompliant. By reckless, I mean to exclude some people: If you have a medical condition that counsels against vaccination, you are excused.

If you have a good-faith religious objection, same — although I have a hard time imagining what that might be beyond adherents of Christian Science, or what religion does not advocate some version of the Golden Rule. Yes, some fetal cell lines were used in the development or testing of the vaccines, but the Vatican has declared that it is “morally acceptable” to take the vaccines, and that reasoning seems solid.

Marcus isn’t alone here. Axios’ Caitlin Owens notes that “Vaccine mandates are popular.”

Nearly two-thirds of Americans say they’d support federal, state or local governments requiring everyone to get a coronavirus vaccine, according to a new survey conducted by The COVID States Project.

[…]

4% of respondents said in June or July that they’d support government vaccine requirements, a slight bump up from the 62% who said the same in April or May.

70% said they’d support vaccine requirements to get on an airplane; 61% support requiring children to be vaccinated to go to school; and 66% support requiring college students to be vaccinated to attend a university.

A majority of every demographic subgroup except Republicans said they’d support vaccine requirements. Only 45% of Republicans said they approve of such mandates.

A majority of respondents in all but three states — Wyoming, North Dakota and South Dakota — said they support requirements that everyone be vaccinated.

The size and distribution of the support is rather surprising to me. I’m not shocked that a majority of Americans support requiring vaccination, given that a majority of Americans are themselves vaccinated and those who are unvaccinated impose significant negative externalities on us and our too-young-to-vaccinate children. But I would have expected resistance to be the norm in quite a few states in the Deep South.

Anticipating objections that the government has no right to impinge the freedom of citizens in this way, Marcus counters,

Federal judges have already rejected challenges to vaccine mandates by hospitals and public universities. The Equal Employment Opportunity Commission has made it clear that federal anti-discrimination laws don’t prevent private employers from requiring proof of vaccination. The Justice Department’s Office of Legal Counsel concluded that federal law “does not prohibit public or private entities from imposing vaccination requirements” for vaccines even at the emergency-use stage.

A century ago, balancing the tension between individual liberties and public safety, the Supreme Court upheld the ability of state and local governments to enforce mandatory vaccination laws. “In every well-ordered society charged with the duty of conserving the safety of its members,” wrote Justice John Marshall Harlan, “the rights of the individual … may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Then the great danger was a smallpox epidemic. Today it is a global covid-19 pandemic. The “safety of the general public” demands a “reasonable” response today, just as it did in 1905.

Vox’s Ian Millhiser expounds on this question at length, arguing “Yes, Covid-19 vaccine mandates are legal.” He opens with the aforementioned SCOTUS case, Jacobson v. Massachusetts, and then moves on to the current spate of employers and schools mandating vaccination as a condition of working or attending classes in person. His analysis is less emphatic than his headline:

These sorts of mandates will undoubtedly trigger lawsuits from vaccine resisters. In some cases, individuals with religious objections to vaccines or people with disabilities that preclude them from being vaccinated will have strong legal claims — much like schoolchildren who can already seek exemptions from schools’ vaccination requirements if they have religious objections.

But, assuming that the courts follow existing law — and assuming that Republican state governments do not enact new laws prohibiting employers from disciplining workers who refuse to be vaccinated — most challenges to employer-imposed vaccination requirements should fail.

Under Jacobson, moreover, states should be free to order everyone within their borders to be vaccinated against Covid-19, although it’s far from clear whether the federal government could do the same.

Of course, there is no guarantee that the Roberts Court, which is eager to impose limits on public health officials and not especially bothered about overruling precedents, will follow Jacobson if a state does enact a vaccine mandate. But there is good reason to believe that it will. Even Justice Neil Gorsuch, one of the most conservative members of the current Court, recently described Jacobson as a “modest” decision that “didn’t seek to depart from normal legal rules during a pandemic.”

The bottom line, in other words, is that, under existing law, numerous institutions within the United States may require their employees — and, in some cases, their citizens — to be vaccinated against Covid-19.

Of course, the only way to find out whether the courts will let these mandates stand is to issue the mandates and try to enforce them.

I suspect President Biden could, by executive order, mandate vaccination for Federal employees and contractors and, especially, members of the armed forces under the precedents that allow private employers to do the same. But Milhiser thinks they probably don’t have the broader authority to mandate that other citizens get the vaccine:

To be brief: Neither Congress nor President Biden can likely force citizens to be vaccinated, although the federal government can use financial carrots and sticks to encourage vaccination.

To be longer (and wonkier): In NFIB v. Sebelius (2012), the Court’s first major Obamacare case, the Supreme Court imposed a novel new limit on Congress’s power. Congress may not use its broad power to regulate the national economy in order to regulate “inactivity.” If someone does not want to take a particular action, the federal government’s ability to require them to take that action is limited.

NFIB‘s holding on this point, in the words of one very conservative federal judge, had no support “in either the text of the Constitution or Supreme Court precedent,” but lower courts are required to follow the Supreme Court’s decisions even if they are arbitrary or lawless. And NFIB has pretty clear implications for a federal vaccine mandate.

Indeed, this very issue came up during oral arguments in NFIB. Justice Stephen Breyer posed a hypothetical to Michael Carvin, one of two lawyers arguing that the Affordable Care Act is unconstitutional, about what might happen if the Court adopted his proposed legal standard. “If it turned out there was some terrible epidemic sweeping the United States,” he said, would the federal government have the “power to get people inoculated?”

Carvin’s response: “No, they couldn’t do it.”

Yet, even if the courts endorse Carvin’s reading of the federal government’s authority to mandate vaccines, Congress could still use financial incentives to encourage vaccination.

The simplest way to do so would be to pay people to get vaccinated or to offer a tax break to everyone who gets the vaccine. The tax code gives all sorts of benefits to taxpayers who engage in activity that Congress deems desirable — ranging from buying a home to having a child to driving an electric vehicle.

Another option is to require unvaccinated people to pay a much higher percentage of their income in federal taxes in order to incentivize them to become vaccinated. Such a policy might elicit some outrage, but it’s entirely constitutional even under NFIB.

But Congress also has fairly broad authority to attach conditions to federal benefits. It could require everyone who receives health coverage through a federal program such as Medicare, Medicaid, or the Affordable Care Act to become vaccinated if they want to keep those benefits.

One group the federal government could easily impose vaccines on: immigrants. Federal law already requires foreign nationals who apply for an immigration visa or who want to become lawful permanent residents to be vaccinated against certain diseases. The government could add a Covid-19 vaccine to this list.

What’s interesting, though, is that despite the obvious policy rationale for and widespread public support for mandating vaccines, it simply hasn’t happened. It’s bizarre, indeed, to allow a minority to literally go around killing people without taking aggressive action to stop it.

FILED UNDER: COVID-19, Government
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. charon says:

    Vaccine mandates are much less popular with Republican primary voters. You can’t be elected without first being nominated.

    Tail, once again, wags dog.

    (Just in case you imagine their is anything odd about the behavior of Ron DeSantis and Greg Abbott).

    4
  2. Mimai says:

    Sorry for hyper-focusing on the poll, but this is another instance where the pollsters drop the ball. Why can’t they be just a little more specific, which would bring important clarity to this issue?

    Vaccine mandate authority varies across categories. Everyone vs. airplanes vs. (public?) schools vs. (public?) colleges.

    AFAICT, discussion around the first category (everyone) has largely been centered at the federal level. That is, should the federal government impose a mandate?

    Discussion around the second (airplanes) has varied between federal and airline. Should the federal government impose a mandate? Should individual airlines?

    Discussion around the third (public? schools) has been centered at the state and district levels. Should states impose a mandate? Should individual districts?

    Discussion around the third (public? colleges) has centered at the college level. Should individual colleges impose a mandate?

    Moreover, a lot of discussion has focused on whether these entities have the right to impose a mandate. Whereas other discussion has focused on whether they ought to impose a mandate. People often talk past each other because they focus on different questions. They also often switch (implicitly or strategically) between the two.

    My point is that these polls and these discussions often frustrate because they add to the fog rather than to the light.

    2
  3. OzarkHillbilly says:

    It’s bizarre, indeed, to allow a minority to literally go around killing people without taking aggressive action to stop it.

    Not all that bizarre when you consider the fact that a fair percentage of the refusenics are armed white people threatening violence if they don’t get their way.

    11
  4. steve says:

    Some of the usual right wing idiot politicians (redundant) were claiming that we should force the military to get vaccinated. This would make us communists, or something. They seen unaware that the military already requires flu vaccinations and has done so since around the WW1 era. Young healthy people dont usually die very often from flu but you dont have effective units if 1/3 of them have fevers of 105 and cant walk.

    Steve

    6
  5. charon says:

    https://www.washingtonpost.com/health/2021/07/30/vaccination-increases-states-delta-surges/

    More than 856,000 doses were administered Friday, the highest daily figure since July 3, according to The Washington Post’s vaccine tracker. This was the third week that states with the highest numbers of coronavirus cases also had the highest vaccination numbers, deputy White House press secretary Karine Jean-Pierre said at a briefing Friday.

    Vaccine-hesitant pockets of the country turned hot spots, are at the vanguard, including Louisiana, which experienced a 114 percent increase in uptake, according to the latest data from the Centers for Disease Control and Prevention. Arkansas recorded a 96 percent increase, Alabama, 65 percent, and Missouri, 49 percent.

    1
  6. CSK says:

    @steve:
    In your first sentence, did you mean to say “not get vaccinated”?

  7. Just nutha ignint cracker says:

    If the headline had read that over a third of Americans do not support mandates, would telling that third to STFU and get in line be the reaction? In this case, probably yes, but my point is that “almost 2/3” looks like a bigger majority than it actually is. For example, under current conditions in Congress, “almost 2/3” won’t get the infrastructure bill passed as the Democrats have written it. Almost 2/3 also won’t get protections for voters’ rights. Almost 2/3 will also apparently not get the budget passed or debt ceiling raised (last I read, the budget will be another continuing resolution and Yellen was talking about Republicans forcing the nation to commit suicide a day or two ago). Almost 2/3 and $1.95 will get you a cup of coffee an Denny’s. But only if you are and AARP member–coffee went up. It won’t get anyone additional vaccinated.

    2
  8. steve says:

    CSK- Oops. Keyboards and I are pretty much enemies.

    Steve

  9. James Joyner says:

    @Just nutha ignint cracker: If this required passing a bill through Congress, you’re absolutely right. But Biden can mandate vaccines as a condition for federal employment by fiat. And state governors have even more leeway within their jurisdictions.

    1
  10. JKB says:

    Well, the vaccines don’t “work” but having immunity from previous infection is proving robust. So will you support using government violence directly or in support of private parties to forcibly inject those under 50 who have less accounted for less than 0.8% of deaths even before we had useful treatments for serious COVID?

    Ivermectin has been shown to be effective at preventing infection and virus shedding, but the “experts” deny its use in support of forcible injection of the vaccine.

    If there are long term bad effects of the vaccines on, say young women’s fertility, is that the forced vaccine supporters were motivated by their irrational fear of the virus going to save them from the wrath.

    1
  11. James Joyner says:

    @JKB:

    Well, the vaccines don’t “work” but having immunity from previous infection is proving robust.

    This is precisely backwards. The vaccines, particularly the mRNA ones, are way more protective than prior exposure, especially against variants. Vaccines don’t “work” as well against the newest strain at preventing transmission as they did against the strains they were developed against. But they’re still much more effective at this than prior infection.

    12
  12. Jax says:

    I never cease to be amazed at how well they manage to get their “talking points” exactly backwards and spread far and wide so fast.

    6
  13. CSK says:

    @JKB:

    I’ve re-read your final sentence several times and it makes no sense grammatically nor syntactically whatsoever. Could you rewrite it, please?

    1
  14. Lounsbury says:

    @CSK: He is a drooling idiot of a troll (and I say this as someone who you lot boringly accuse now and again of trolling, Russian bot etc due to simple disagreement). There is no purpose at all to restating, he posts to get reaction I believe.

  15. Just nutha ignint cracker says:

    @CSK: Try “is the fact that forced vaccine supporters… from the wrath of those infertile women and their extended families.” It’s still not a good statement, but mostly because the answer is “who cares? No one is going to start shooting random people over cases of infertility–caused by vaccine or not.” (JKB has difficulty remembering that community memory is measured in nanoseconds because there isn’t any smaller measure available.)

    1
  16. Matt Bernius says:

    If there are long term bad effects of the vaccines on, say young women’s fertility, is that the forced vaccine supporters were motivated by their irrational fear of the virus going to save them from the wrath.

    JKB has been really into the theoretical wrath lately. He has made similar comments about “voter fraud” as well–that voters in counties that Trump claims fraud occurred are going to rise up in wrath against local election officials. Ditto stuff about public education.

    Someone seems really attached to thier civil war fantasies. Probably needs to put down The Turner Diaries or the latest Kurt Schlicter race war novel.

    2
  17. Jax says:

    @Lounsbury: Given his track record commenting here over the last ten years or so, I have no doubt that he’s not just trolling, these are his “firmly held convictions”. Never mind that the narrative changes on the daily, just know that he is a faithful foot soldier and repeats each day’s daily talking points as received during…..osmosis, or something.

  18. Jax says:

    I’ve noticed that being dead also really messes with a young woman’s fertility, @JKB.

    4
  19. Jax says:

    Some of these people are just not EVER going to get vaccinated. I’ve seen this copy and paste at least 15 times today. They are using the fact that vaccinated people can still get and spread the virus, while completely ignoring the fact that it’s saved many of them from death.

    ME: CDC, should I get poke if I already had Covid?
    CDC: “Yes, you should be poked regardless of whether you already had COVID-19. That’s because experts do not yet know how long you are protected from getting sick again after recovering from COVID-19.”
    ME: Oh, okay, we don’t know how long natural immunity lasts. Got it. So, how long does poke-induced immunity last?
    CDC: “There is still a lot we are learning about COVID-19 pokes and CDC is constantly reviewing evidence and updating guidance. We don’t know how long protection lasts for those who are poked.”
    ME: Okay … but wait a second. I thought you said the reason I need the poke was because we don’t know how long my natural immunity lasts, but it seems like you’re saying we ALSO don’t know how long poke immunity lasts either. So, how exactly is the poke immunity better than my natural immunity?
    CDC: …
    ME: Uh … alright. But, haven’t there been a bunch of studies suggesting that natural immunity could last for years or decades?
    CDC: Yes.
    NEWYORKTIMES: “Years, maybe even decades, according to a new study.”
    ME: Ah. So natural immunity might last longer than poke immunity?
    CDC: Possibly. You never know.
    ME: Okay. If I get the poke, does that mean I won’t get sick?
    BRITAIN: Nope. We are just now entering a seasonal spike and about half of our infections and hospital admissions are poked people.
    ME: CDC, is this true? Are there a lot of people in the U.S. catching Covid after getting the poke?
    CDC: We stopped tracking breakthrough cases. We accept voluntary reports of breakthroughs but aren’t out there looking for them.
    ME: Does that mean that if someone comes in the hospital with Covid, you don’t track them because they’ve been poked? You only track the UN-poked Covid cases?
    CDC: That’s right.
    ME: Oh, okay. Hmm. Well, if I can still get sick after I get the poke, how is it helping me?
    CDC: We never said you wouldn’t get sick. We said it would reduce your chances of serious illness or death.
    ME: Oh, sorry. Alright, exactly how much does it reduce my chance of serious illness or death.
    CDC: We don’t know “exactly.”
    ME: Oh. Then what’s your best estimate for how much risk reduction there is?
    CDC: We don’t know, okay? Next question.
    ME: Um, if I’m healthy and don’t want the poke, is there any reason I should get it?
    CDC: Yes, for the collective.
    ME: How does the collective benefit from me getting poked?
    CDC: Because you could spread the virus to someone else who might get sick and die.
    ME: Can a poked person spread the virus to someone else?
    CDC: Yes.
    ME: So if I get poked, I could still spread the virus to someone else?
    CDC: Yes.
    ME: But I thought you just said, the REASON I should get poked was to prevent me spreading the virus? How does that make sense if I can still catch Covid and spread it after getting the poke?
    CDC: Never mind that. The other thing is, if you stay unpoked, there’s a chance the virus could possibly mutate into a strain that escapes the pokes protection, putting all poked people at risk.
    ME: So the poke stops the virus from mutating?
    CDC: No.
    ME: So it can still mutate in poked people?
    CDC: Yes.
    ME: This seems confusing. If the poke doesn’t stop mutations, and it doesn’t stop infections, then how does me getting poked help prevent a more deadly strain from evolving to escape the poke?
    CDC: You aren’t listening, okay? The bottom line is: as long as you are unpoked, you pose a threat to poked people.
    ME: But what KIND of threat??
    CDC: The threat that they could get a serious case of Covid and possibly die.
    ME: My brain hurts. Didn’t you JUST say that the poke doesn’t keep people from catching Covid, but prevents a serious case or dying? Now it seems like you’re saying poked people can still easily die from Covid even after they got the poke just by running into an unpoked person! Which is it??
    CDC: That’s it, we’re hanging up now.
    ME: Wait! I just want to make sure I understand all this. So, even if I ALREADY had Covid, I should STILL get poked, because we don’t know how long natural immunity lasts, and we also don’t know how long poke immunity lasts. And I should get the poke to keep a poked person from catching Covid from me, but even if I get the poke, I can give it to the poked person anyways. And, the other poked person can still easily catch a serious case of Covid from me and die. Do I have all that right?

    ME: Um, hello? Is anyone there?

    1
  20. Monala says:

    @JKB: right wing talk show host Phil Valentine said vaccines don’t work, and he wouldn’t get Covid anyway because he was too healthy. Then he caught Covid and started on a protocol of Vitamin D and invermectin. His condition continued to worsen and now he’s in the ICU on a ventilator.

    link

    3
  21. Andy says:

    James,

    The Vox article is very bad, for two reasons:

    1. It doesn’t even mention the legal distinction between a fully licensed vaccine and one that is available via an Emergency Use Authorization (EUA).

    2. It doesn’t mention the legal history of the only previous attempt by the government to mandate a EUA vaccine. The government lost that case.

    So basically most of the Vox piece simply does not apply here. EUA medical products, including vaccines, require informed consent, while fully licensed vaccines do not. Hence why it’s legal to mandate a fully licensed vaccine and illegal to mandate a vaccine under EUA (ie. an unlicensed vaccine).

    But rather than go through all this yet again, I’ll just point you to this article I recently found that explains it much better than I have.

  22. Andy says:

    @Lounsbury:

    He is a drooling idiot of a troll (and I say this as someone who you lot boringly accuse now and again of trolling, Russian bot etc due to simple disagreement). There is no purpose at all to restating, he posts to get reaction I believe.

    Many regulars here seem to greatly enjoy feeding trolls for some reason.

    2
  23. Barry says:

    @JKB: “Well, the vaccines don’t “work” but having immunity from previous infection is proving robust.”

    Well, wrong, but thanks for playing!

    2
  24. Not the IT Dept. says:

    I’d like to see some interviews with health insurance companies – is vaccination going to be required for continued coverage? Kind of surprised there hasn’t been any media focussed on that.

    And all these idiots who refused vaccination but have no problem taking up precious hospital bed space, equipment use and medical professionals’ time: I’d like someone ask them how they can justify that. After all, it’s the same medical fiends who have an “agenda”, right? If they were really serious about their “concerns” they’d insist on being treated at home and dying in their beds. That they head to the hospital when they get Covid shows what they really think.

    What needs to happen is stop arguing with these look-at-me-ma-I-got-my-picture-in-the-paper! show-offs, refuse them entry to hospitals, and cut off their health insurance. By Christmas time, the problem will have been greatly reduced. And good riddance to them.

    1