The Peoples’ Constitution: Can the Government Require the Covid 19 Vaccine?

By Ben Lenhart

Several vaccines have been approved to combat the COVID-19 pandemic, which has already infected more than 30 million people, and killed more than half a million, in the U.S. alone. Most health experts say the vaccines are safe and effective, and the government recommends them for nearly all adults. But what if, instead of merely recommending it, the government required you to get the vaccine? Can the government do this? Can I be forced to get a vaccine? These questions impact all Americans, and highlight fundamental features of our Constitution, including our individual freedoms, our federalist system, and the limits on government power.

Who Is Ordering the Vaccine—the Federal or State Government?

The “which government” question is vital because state governments have more power to mandate a COVID vaccine than the federal government. Why? The answer goes to the heart of the American system of government. In drafting our Constitution, the Founding Fathers feared that the new federal government could grow too strong and threaten Americans’ liberties, such as freedom of speech and freedom of religion. To avoid this, the Constitution intentionally limits and weakens the federal government by imposing a broad system of checks and balances: separation of power among three branches, veto power, judicial review, frequent elections, the bill of rights, impeachment, etc.

But the single biggest check on federal power is this: The federal government has only those powers listed in the Constitution—no others. The federal government can pass laws within those powers, but not beyond. Over the years, the Supreme Court has invalided many federal laws because they exceeded the power of the federal government. One early, famous example was Marbury v. Madison (1803), where Chief Justice John Marshall found that Congress has exceeded its authority in passing the very law giving the court power to hear the case. U.S. v Lopez (1995) is a more recent example, where the Supreme Court struck down a federal law creating a gun-free zone around schools. The court acknowledged it may be a sensible law, but it was invalid nonetheless because the Constitution did not give the federal government the power to create the school gun-free zone at issue in the case. The Affordable Care Act (ACA) is facing a similar court challenge, based on the argument that the federal government simply lacks the power to pass the ACA.

In contrast, most states have the opposite structure—while the federal government is limited by the powers in the Constitution, state governments usually have unlimited power to pass any laws that they believe to be good for their people (so long as the state law does not conflict with federal law or the Constitution).While the federal government can pass laws only in the areas where the Constitution gives it power, most States can pass laws in any and all areas, unless forbidden by higher authority.Federal power starts with nothing, and then the Constitution adds a select set of powers; most states start with everything—all legislative power—and then certain powers are taken away.

This stark difference echoes the 10th Amendment to the Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 10th amendment was important for winning ratification of the Constitution in 1788 because it helped address concerns of the “Anti-Federalists”—such as George Mason and Patrick Henry—who favored state over federal power.

Turning to the Covid vaccine, these differences mean that state laws mandating the vaccine are more likely to pass muster than federal laws. While Congress has broad power under the Constitution, including the power to regulate interstate commerce, that power is lessened when Congress tries to regulate people or things that are purely local and not involved in interstate commerce. A federal law mandating vaccines for all Americans across the nation (even one with exceptions for health or religious grounds) would likely be invalid because it goes beyond the power of the federal government, while a similar state law (aimed at people in that state) is more likely to be valid because it would be based on the inherent power of the state to pass laws for the public good.On the other hand, a more limited federal vaccine or mandate (or face mask mandate), such as one limited to federal workers or those traveling interstate, would stand a better chance of winning in court. President Biden issued just such a mask mandate upon taking office, but perhaps knowing the limits imposed on him by the Constitution, he largely limited his face mask order to federal employees and federal government property.

Real Life Example: Massachusetts Mandates A Vaccine

In Jacobson v. Massachusetts (1905), Mr. Jacobsen refused to obey a law requiring that everyone in Cambridge receive a smallpox vaccination. At the time, a smallpox epidemic was raging. Jacobson faced a fine or imprisonment if he failed to take the vaccine. Jacobsen argued that forcing him to get the vaccine violated his fundamental liberty, which included freedom to control his own body. The State argued that the health risk was urgent, that widespread vaccination was needed to protect everyone against smallpox, and that any harm to individual liberty was a price worth paying given the severe threat of smallpox.

The Supreme Court acknowledged that both sides had a point. On one hand the Court noted that “when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis …”On the other hand, the Court recognized Jacobsen’s argument, and agreed that the vaccine order did impact liberty and personal freedom. The court cautioned that “a law purporting to protect public health, may nevertheless be invalid if it “has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” In short, while the court balanced the two competing concerns—liberty and public safety—the court came down squarely in favor of public safety, holding the vaccine order was valid given the seriousness of the threat. The Court said that “the liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint.” But the Court also warned that any if a law goes too far in restricting liberty, if the law is in place for too long, or reaches too far, or if the goal of the law can be achieved by less invasive measures, then the court may well strike down the law.

Face Masks and Seat Belts

Laws requiring face masks due to COVID and laws mandating seat belt use offer more examples of the hard balance between individual liberty and a broader public good.Nearly all of these laws are state and local laws, not federal, for the same reasons discussed above (states simply have more power than the federal government to issue such laws). Several lawsuits are currently challenging the power of states to require face masks during the pandemic, arguing they violate freedom of speech or expression, or invade the liberty to control what happens to one’s body (similar to the arguments in the Massachusetts vaccine case above). Most courts have so far rejected these challenges. In addition, some states have recently relaxed or even eliminated COVID face mask laws, and for better or worse, the federal government mostly lacks the power to stop them.

Conclusion

Americans pay a price to protect our fundamental freedoms. Part of that price is a federal government that, by the very design of our Constitution, is often slow and inefficient, and sometimes lacks the Constitutional power to take the very measures most needed to combat a problem like the pandemic. Some authoritarian governments were able to move more swiftly than America in combating COVID-19 because those governments have far more power concentrated in the central government, and even, in some cases, in the hands of a single leader. Of course, the citizens of those nations pay a price too—the power to rapidly combat a pandemic can quickly turn to the power to strip away liberties from is citizens whenever the government sees a threat. Our Constitution strikes a very different balance, one tilted more in favor of individual freedoms and against an all-powerful federal government.


Ben Lenhart

[Ben Lenhart is a graduate of Harvard Law School and has taught Constitutional Law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.]

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