Tuesday, July 13, 2021
The Biden White House is clearly concerned that making vaccines mandatory will cause not just court challenges but a public backlash. However, such mandatory programs have been upheld. As I discussed in a column last year, there is a 1905 case where the Supreme Court upheld a state mandatory vaccination program of school children for small pox in Massachusetts. In Jacobson v. Massachusetts (1905), the Court found that such programs are the quintessential state power rather than a federal power. It also held that “every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty 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.” States are allowed to subject citizens to restraints to protect “general comfort, health, and prosperity of the State.”
The fear is that, as with social media companies carrying out censorship of political and social viewpoints, companies will now serve as surrogates for the state on vaccinations. The Administration would prefer to do precisely what Wen advocated: ratchet up the private penalties and difficulties for anyone who wants to remain unvaccinated.
The problem is when you have leading analysts arguing for such measures as coercive devices. While there is considerable deference on such matters, the courts could take note of such demands to make life hard on those who are not “getting with the program.”