On December 11, 2020 the FDA issued an Emergency Use Authorization (EUA) for the first COVID-19 vaccine, which was created by Pfizer-BioNTech. Additionally, a second COVID-19 vaccine, created by Moderna, is expected to be granted an EUA before the end of 2020. The creation of the vaccine is a scientific miracle, not only because of the speed in which it has been developed, but also because it uses mRNA technology to accomplish its purpose. Currently, there are no licensed mRNA vaccines in the United States, but the technology is not completely new and has been studied in other viruses. mRNA vaccines are unique because unlike other vaccines, which may inject a weaker version of a virus, mRNA vaccines operate as an instruction guide to our bodies to produce COVID-19 specific “spike proteins” that trigger an immune response and the creation of antibodies.
“The issuance of EUA’s for COVID-19 vaccines offers a glimmer of hope at the end of a year that has been plagued by the pandemic, social unrest, and political turmoil. However, a vaccine will only be effective at culling outbreaks and ultimately ending the pandemic if herd immunity is achieved.”
The issuance of EUA’s for COVID-19 vaccines offers a glimmer of hope at the end of a year that has been plagued by the pandemic, social unrest, and political turmoil. However, a vaccine will only be effective at culling outbreaks and ultimately ending the pandemic if herd immunity is achieved. In the short term, experts believe seventy percent of the human population will have to develop antibodies to curb community spread, and overall, forty to fifty percent of the human species would need to develop antibodies to achieve long-term herd immunity. A December 8th Gallup poll revealed that 63% of Americans are willing to get the vaccine, nevertheless, a return to “normalcy” will require more than the willingness of Americans to be vaccinated. It will require a concerted effort among nations to ensure herd immunity is achieved across the globe.
Focusing on the American vaccination effort, many schools, employers, and some lawmakers will likely push for mandatory vaccination against COVID-19. Schools already require extensive vaccination for various diseases prior to attending and OSHA has said that employers may require employees to receive a flu vaccine absent an approved exemption. A tougher question is whether states or the federal government have the legal authority to mandate vaccinations and if they do, is it the best option for achieving herd immunity?
State Authority to Mandate Vaccinations
The states’ police power includes the authority to create laws that serve public health interests and safety. The quintessential U.S. Supreme Court case that affirmed this power and illustrated that it goes so far as to cover mandatory vaccination is Jacobson v. Massachusetts. In Jacobson, the Supreme Court upheld a Massachusetts law that required vaccination against smallpox, which was provided free of charge.
A state law requiring vaccination against COVID-19 is likely legal under the existing Jacobson rule. However, states would face an enforcement problem. A state could add COVID-19 to the required list of diseases public school students must be vaccinated against or require it for state employees as a condition of employment. But, for the remainder of the population without similar connections to the state, enforcement would be difficult because there is no way to require vaccination absent an Orwellian system which would require a “vaccination passport” to go into any public establishment or the creation of a criminal or civil offense for failure to be vaccinated.
Federal Authority to Mandate Vaccination
Currently there is no federal law which requires any type of vaccination for the general American population. However, there are potential ways either the executive branch or the legislative branch could mandate vaccination against COVID-19. For example, Section 361 of the Public Health Service Act (PHSA) allows the Surgeon General, with approval of the Health and Human Services (HHS) Secretary, “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The PHSA would allow “the apprehension, detention, or conditional release of individuals [only for] the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President.” Section 361 traditionally has been used for imposing quarantine measures or measures to control contamination, and never for mandatory vaccination. If an executive order were issued based on Section 361 mandating vaccination, it is unclear whether courts would uphold the order because of past application of the law and varying canons of statutory interpretation.
If Congress chose to mandate vaccination, the power to do so would largely come from the Constitution’s Spending Clause and Commerce Clause. Congress could use its spending power to condition the receipt of federal funds on state enactment of vaccination mandates using the four-part Dole framework. Congress would have to ensure such action only incentivizes states to act and does not coerce states as to amount to commandeering in violation of the Tenth Amendment.
Additionally, Congress has historically used its power to regulate interstate commerce to pass public health legislation in the past, such as the Food and Drug Act of 1906, along with other measures aimed at protecting the public from contagious diseases. However, a vaccination mandate authorized through the Commerce Clause may be perceived as compelling individuals to engage in commercial activity, a practice struck down in National Federation of Independent Business (NFIB) v. Sebelius.
The authority of the executive and legislative branches of the federal government to mandate vaccination is not settled and accordingly would not be prudent to pursue during a pandemic. One of the most critical factors is ending the pandemic is time. Passing a vaccination mandate in Congress would be a feat of its own given the icy, partisan political climate. Even if legislation was passed or an executive order issued, there would likely be lengthy litigation involved over the constitutionality of such a mandate which could involve injunctions that would defeat the purpose of a vaccination mandate.
In contrast, as discussed above, there is solid legal precedent for states to mandate vaccination, albeit with the allowance of certain exemptions. However, just because a state could mandate vaccination, it is currently unclear whether they should or will even have to. Polls have shown a rise in American trust and willingness to get the COVID-19 vaccine as more studies are published that describe the vaccine’s success. If a state were to mandate vaccination other issues besides enforcement would arise, including the need for funding to administer mass vaccinations as well as securing an adequate supply of the vaccine. The federal government could be most helpful in this endeavor by using its spending power to provide states with the funding necessary to carry out mass vaccination and the funding necessary to produce enough doses of the vaccine for every American. In the end, it will likely be up to the American people to trust the science and take the initiative to receive the vaccination when it is available to them.