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Written By: Kristen Strickland
Executive Research & Writing Editor, American Journal of Trial Advocacy
In the spring of 2020, the world was struck by the COVID-19 pandemic. As the death toll rose, it became clear that a vaccine was urgently needed. Currently, there are two vaccines authorized and available: the Pfizer-BioNTech vaccine and the Moderna vaccine. During President Biden’s presidential transition, he stated that “his goal was to administer 100 million doses [of the vaccines] by the end of his first 100 days.” The Biden administration has been working towards this goal by cooperating with states to create mass-vaccination sites and get vaccines to underserved communities. As of the end of February 2021, over 60 million doses have been administered. However, there are still many more people to be vaccinated. The two COVID-19 vaccines that have been authorized by the CDC are safe and effective against the disease—nevertheless, there are Americans who do not want to be vaccinated. Given the seriousness of the pandemic and the importance of vaccination in order to bring it to an end, can a state government or the federal government mandate that vaccine dissenters receive a COVID-19 vaccine?
In 1905, the Supreme Court of the United States upheld a Massachusetts statute that required its citizens to receive the smallpox vaccine. In response to the smallpox epidemic, Massachusetts enacted a law providing that a city or town’s board of health could “require and enforce” the vaccination upon its citizens who were at least twenty-one years old if the board believed it was “necessary for the public health or safety.” Additionally, the statute required the city or town to administer the vaccinations for free, and anyone who did not comply had to pay a $5 fine. Jacobson was convicted of violating a regulation in Cambridge, Massachusetts, which was enacted under the statute.
Affirming Jacobson’s conviction, the Court stated that the authority of Massachusetts to enact the statute was derived from the state’s police power. The limits of the police power have not been defined by the Court, but the Court has recognized it to include a state legislature’s authority to pass “health laws of every description” and “reasonable regulations . . . as will protect the public health and the public safety.” Seemingly, the only condition is that “no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation, shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument.” This condition became the heart of the Court’s consideration, as Jacobson claimed his constitutional liberty interest was invaded by the state’s vaccination requirement.
The Court rejected Jacobson’s claim, holding that the liberty interest protected by the Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” The Court recognized the principle that people are subjected to many restrictions for the health of the state. Therefore, it was appropriate for the Massachusetts law to require citizens to be vaccinated if the board of health believed vaccination was “necessary for the public health or the public safety.” Today’s courts recognize that under Jacobson, “restrictions imposed in response to a public health emergency should be upheld unless the restrictions: (1) have no real or substantial relation to legitimate public health ends; or (2) are ‘beyond all question a plain, palpable invasion’ of constitutional rights.”
The Jacobson holding indicates that a state legislature may, under its police power, pass laws requiring vaccination if it is for the public health, without violating the liberty interest protected under the Due Process Clause. Today, Jacobson has been applied to uphold state statutes that require vaccinations in order to attend public school. Recently, a California District Court, in a COVID-19 related case, recognized that “[i]n response to a public health threat, a state may enact . . . health laws of every description. Jacobson . . . recognizes that constitutional rights may be reasonably restricted as the safety of the general public may demand.” However, other recent challenges to COVID-19 restrictions on public gatherings of a certain size have been considered, with the Court noting that “Jacobson hardly supports cutting the Constitution loose during a pandemic.” Given the differences in courts’ holdings regarding state and local regulations on the size of public gatherings, it remains unclear whether a state could go further and enact a COVID-19 vaccine mandate; but under Jacobson, it may be possible if tailored correctly.
As it applies to the federal government, the Fifth Amendment to the Constitution states “[n]o person shall . . . be deprived of life liberty, or property, without due process of law.” The United States Supreme Court has not defined every possible liberty interest protected by the due process guarantees of the Constitution, but has stated that one protected liberty interest is “freedom from bodily restraint.” Additionally, the term “liberty” is broadly construed to encompass more than solely “freedom from bodily restraint.” From this definition of a protected liberty interest, it would follow that mandating a vaccine violates a freedom from bodily restraint, as it is a forced administration of a pharmaceutical into a person’s body. However, in Jacobson, the defendant unsuccessfully argued that his liberty interest was invaded by the required vaccination law, which he described as “an assault upon his person.” The state’s police power in enacting such a law was a critical factor in this decision, however, there is no such police power afforded to the federal government.
The absence of a police power allowing Congress to legislate for the public health of Americans is the paramount reason why an attempt to create a federal vaccine mandate would likely fail. The Constitution limits the powers of Congress to those enumerated in the Constitution, plus those necessary and proper to execute their given powers. There is no constitutional provision which grants Congress the power to create laws for public health reasons. Additionally, the Tenth Amendment reserves to the States those powers which the Constitution does not grant to the federal government. Hence, the power to legislate for the public health would be granted to state legislatures, not Congress. Therefore, although there may be a liberty interest to be free of bodily restraint consisting of unwanted vaccinations, such a law passed by the federal government would likely be invalid. However, as COVID-19 has been regarded as a global pandemic, which necessarily affects the public health, it may be permissible for a state government to use their police power to enact a law mandating vaccination of its citizens against the virus––if they do not run afoul of Jacobson or the Due Process Clause of the Fourteenth Amendment.
 As of February 20, 2021, the death toll is over 496,000. WSJ Staff, U.S. Covid-19 Deaths Inch Closer to 500,000, Wall St. J., Feb. 20, 2021, https://www.wsj.com/livecoverage/covid-2021-02-19/card/nrIssC85kqMq8doHgvOA.
 Ctrs. for Disease Control and Prevention, Different COVID-19 Vaccines, Authorized and Recommended Vaccines, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines.html (last updated Jan. 15, 2021).
 Stephen Armour & Sabrina Siddiqui, Biden’s First Month of Covid-19 Response Marked by Larger Federal Role, Wall St. J., Feb. 20, 2021, https://www.wsj.com/articles/bidens-first-month-of-covid-19-response-marked-by-larger-federal-role-11613840400.
 Ctrs. for Disease Control and Prevention, COVID-19 Vaccinations in the United States, Ctrs. for Disease Control and Prevention, https://covid.cdc.gov/covid-data-tracker/#vaccinations (last visited Feb. 20, 2021).
 Ctrs. for Disease Control and Prevention, COVID-19 Vaccines Are Safe, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (last updated Feb. 9, 2021); Ctrs. for Disease Control and Prevention, Help Stop the Pandemic by Getting Vaccinated, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html (last updated Feb. 9, 2021).
 See Phred Dvorak & Pietro Lonbardi, Covid-19 Vaccine Rollout Faces Public Concerns Over Safety, Wall St. J., Dec. 7, 2020, https://www.wsj.com/articles/covid-19-vaccine-rollout-faces-public-concerns-over-safety-11607344315?mod=article_inline (listing worries about side effects, the speed of the vaccines’ development and effectiveness of the vaccine, and being against vaccines, as reasons why, in a survey, Americans said they would not receive a Covid-19 vaccine).
 Ctrs. for Disease Control and Prevention, COVID-19 Vaccination Will Be an Important Toll to Help Stop the Pandemic, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/vaccine-benefits.html.
 Jacobson v. Massachusetts, 197 U.S. 11, 12, 39 (1905).
 Id. at 12.
 Id. at 12, 21.
 Id. at 24-25, 39; Police Power, Black’s Law Dictionary (11th ed. 2019) (“The inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice. A state’s Tenth Amendment right, subject to due-process and other limitations, to establish and enforce laws protecting the public’s health, safety, and general welfare, or to delegate this right to local governments.”).
 Jacobson, 197 U.S. at 25 (citing several cases describing the scope of a state’s police power).
 Id. at 26 (Jacobson argued “the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.”); see U.S. Const. amend. XIV, § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”).
 Jacobson, 197 U.S. at 26.
 Id. (“[P]ersons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state.” (quoting Hannibal & St. J.R. Co. v. Husen, 95 U.S. 465, 471 (1877))).
 Id. at 27.
 Culinary Studios, Inc. v. Newsom, 2021 WL 427115, at *3 (E.D. Cal. Feb. 8, 2021) (quoting Jacobson, 197 U.S. at 31).
 E.g., Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 351, 353 (4th Cir. 2011) (When rejecting defendant’s argument that a West Virginia law requiring vaccination of children in order to attend public school violated her First Amendment right to free exercise of religion, the court noted that the Jacobson Court held that the Massachusetts vaccination law did not “invade any right secured by the Federal Constitution.” (quoting Jacobson, 197 U.S. at 38)); Boone v. Boozman, 217 F.Supp. 2d 938, 954 (E.D. Ark. 2002) (“The Supreme Court has long recognized that a state may require public and private school children to be immunized.”).
 Culinary Studios, 2021 WL 427115, at *3 (“Temporarily requiring activities to be conducted outdoors in counties facing heightened spread of Covid 19, limiting capacity in businesses, and requiring wearing face masks in public are not plain and palpable constitutional violations.”).
 Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring).
 See id. at 65-66, 69 (enjoining Governor Cuomo’s restrictions on the size of religious services in certain areas of New York). But see Culinary Studios, 2021 WL 427115, at *1, *17 (holding that the plaintiffs did not assert a protected liberty interest that was violated by Governor’s Newsom executive order that required closure of all non-essential business).
 U.S. Const. amend. V.
 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572 (1972) (“While this court has not attempted to define with exactness the liberty . . . guaranteed . . . the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint.” (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923))).
 Boling v. Sharpe, 347 U.S. 497, 499 (1954).
 Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).
 Id. at 38 (“[T]he police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression.”).
 Bond v. United States, 572 U.S. 844, 854 (2014) (“In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder. The States have broad authority to enact legislation for the public good—what we have often called a ‘police power.’ The Federal Government, by contrast, has no such authority.” (quoting United States v. Lopez, 514 U.S. 549, 567 (1995)) (citing M’Culloch v. Maryland, 17 U.S. 316, 404-05 (1819))).
 Id. (The federal government “can exercise only the powers granted to it.” (quoting U.S. Const. art. I, § 8, cl. 18)).
 U.S. Const. amend. X (“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 Visual and Data Journalism Team, Covid Map: Coronavirus Cases, Deaths, Vaccinations by Country, BBC News, Mar. 1, 2021, https://www.bbc.com/news/world-51235105 (“[Covid-19] was declared a global pandemic by the WHO on 11 March 2020.”).