Sunday, January 16, 2022

The Government *Can* Require Vaccinations: Supreme Court History

We often hear conservative politicians emphasizes to audiences that the government can't make you get a vaccine.   That's misleading, based on Supreme Court precedents that were touched upon last week's vaccination cases.

Last week, there were two highly discussed Supreme Court decisions (links below).  Both were, technically, temporary decisions (to postpone or allow an implementation, not to decide a case in a final way).   

  • The Supreme Court put on hold an OHSA regulation that would have required vaccination (or weekly testing) at large employers.   
  • The Supreme Court did NOT put a hold on an HHS regulation that requires nearly all health care workers at institutions to be vaccinated.   

Although I don't like the "conservative" and "liberal" nomenclature at all, the "conservative" justices lost the HHS healthcare institution decision, and left behind a dissenting opinion by Justice Thomas.   Here, they brought up an argument they didn't need to voice in the OSHA case, since they had already won that one.    They noted that our federal constitution was created by the states in 1788 and retained all governing powers to the states, that weren't transferred to the federal government.  For example, raising an Army, declaring war, international treaties, and regulation of disputes between the states are some of the enumerated federal powers in the various Branches and Articles of the Constitution.

Thomas noted that vaccinations belonged to the legitimate authority of the state level, and not the federal level.   Thomas cited to Zucht v King 1922.   Zucht is a short dismissal of a state vaccination case, the point of which is to refer back to the prior and authoritative case, Jacobson v Massachusetts, 1905.   Both cases support the authority of states to create and enforce vaccination laws.   Opponents of state-based vaccination mandates lost in the Supreme Court.

So if a state governor, say, in Florida, says, "The government has no legal right to require vaccination!" that's not really true, unless the Constitution of Florida specifically governs that.  In general, Supreme Court precedents allow state legislatures to create vaccination mandate laws.  A governor can give a speech and promise not to do vaccination laws, but he and the assembly could do them, absent a local state constitution saying otherwise.  


Jacobson v Massachusetts, cited in briefing documents multiple times but cited just once in the 65pp of final opinions and dissents, remains an interesting read.  Basically, Jacobson argued first that vaccination violated the preamble of the Constitution (promote the general welfare and secure the blessings of liberty.)  Judge Harlan said that was not controlling law and too vague a standard to apply.   Jacobson argued that vaccination violated "the spirit of the constitution," which Harlan also dismissed quickly.   Jacobson argued a range of findings of fact, points which had been lost at lower trial courts and were not re-ligitated.   Finally, Jacobson argued that vaccination violated the 14th amendment (not to deprive of liberty and property without due process), which Harlan dealt with more carefully but found unavailing.   

Harlan 1905 attributes vaccination authority to the "police power" of the several states, which sounds grim, but I believe it's a term of art that means the general governing power of the state.  See a contemporary 1907 article in Columbia Law Review, by Cook, "What is Police Power?," writing, "no phrase is more frequently used and at the same time less understood."  

Zucht in 1922 was a girl wanting to attend Texas public schools; the vaccination was smallpox.


AMA attorney on the new cases here.  Discussion at MedPageToday here.  At HealthCareDive here.

OSHA Case (no vaccination per SCOTUS) here.  (Prior documents here.)

HHS health system case (vaccination can proceed per SCOTUS) here.  (Additional docket PDFs here).

Zucht 1922 here.  Justice Brandeis.

Jacobson 1905 here. on Jacobson, here.

Deeper dive, 2021, at National Constitution Center, here.


The Jacobson case reminds me again that SCOTUS opinions of the mid 1800s and early 1900s, like this one, are often clearer and more easily read than novels of the day, say Edith Wharton or Henry James from 1905.

The OSHA prior documents include remarkable dissents by Sutton (pdf p. 65) and Bush (pdf p. 92), the latter tracking policy back to 1822 for originalists.  He also cites Cass Sunstein, 2008, "Is OSHA Unconstitutional?" (here).